New South Wales Court of Criminal Appeal CITATION : R v Dang [2000] NSWCCA 269 FILE NUMBER(S) : CCA 60311/99 HEARING DATE(S) : 14 July 2000 JUDGMENT DATE : 14 July 2000 PARTIES : Tam Minh Dang v Regina JUDGMENT OF : Meagher JA at 1; Grove J at 15; Bergin J at 16 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0170 LOWER COURT JUDICIAL Shillington DCJ OFFICER : COUNSEL : Appellant: R Hoenig respondent: R Sutherland SOLICITORS : Appellant: Patricia White & Assoc. Respondent: Commonwealth DPP CATCHWORDS : Appeal against conviction and sentence - importation of prohibited substance - summing up - accused remains silent and Jones v Dunkel CASES CITED: RPS v Regina (2000) 74 ALJ 449,Weissensteiner v Regina [1993]178 CLR 217, Jones v Dunkel DECISION : 1. Appeal allowed; 2. Sentence set aside.; 3. Re-trial ordered. - 1 - IN THE COURT OF CRIMINAL APPEAL CCA: 60311/99 MEAGHER JA GROVE J BERGIN J Friday 14 July 2000 REGINA v TAM MINH DANG JUDGMENT 1 MEAGHER JA: I will give the first judgment. 2 This is an appeal against conviction and sentence by 3 Mr Tam Minh Dang who on 28 May 1999 was sentenced by his Honour Judge Shillington for a prison term consisting of a fixed term of nine years and an additional term of three years for the offence of being knowingly concerned in the importation of a commercial quantity of heroin. The circumstances are relatively simple. 4 In February 1996 the Australian Federal Police seized in excess of 14 kilograms of impure heroin secreted inside some layers that had been shipped by air crate from Bangkok. The consignee was one Mr Huang who is the brother-in-law of the appellant, Mr Dang. In respect of this importation Mr Huang has pleaded guilty and has been sentenced. 5 Mr Dang was accused by the Crown of being knowingly implicated in this importation. He never made any admissions to the Crown or anyone else. No-one ever saw him handling or have anything to do with heroin. A few pieces of paper were found in his unit, each of them capable of being interpreted in a multitude of ways, and some of which were capable of being treated as consistent with guilt but, alleges the Crown, he was also a consignee in a similar package from Bangkok some months earlier in December 1995. However, there was no suggestion that the December 1995 package contained any heroin. Perhaps it did, perhaps it did not. The Crown certainly never proved that it did. 6 The case against Mr Dang, therefore, was I think finished and, as the Crown conceded, was at least tenuous up to the point of the 1995 importation. In my view, it was tenuous without regard to the 1995 importation and it was tenuous if one did have regard to the 1995 importation. 7 What his Honour said to the jury was this: "It is of course a matter entirely for you but the fact that the accused has not given an explanation of the various matters relating to his own conduct and of which you would expect him to have knowledge may lead you to more readily accept the arguments advanced by the Crown in this regard". 8 Learned counsel for the appellant argued that his Honour's remarks were not permissible and were contrary to the fundamental features of a criminal trial and he relied on the High Court decision in RPS v Regina 74 ALJ at 449, the latest in a line of not entirely consistent authority on the point. 9 In that case the majority held, amongst other things, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. 10 There are some exceptions to this as the High Court decision in Weissensteiner v Regina 178 CLR at 217 makes plain. In that case comment on the silence of the accused was sanctioned in circumstances where the accused and two other persons went out in a boat and the boat came back containing the accused but not the two other persons and where there was evidence the two other persons were dead. In those circumstances it was permissible, according to the Queensland Supreme Court and the majority of the High Court, to expect the accused to give some explanation of what had happened. But even in that case the majority of the High Court said: 11 "Not every case calls for an explanation or contradiction in the form of evidence from the accused. Even if there are facts peculiar within the accused's knowledge the deficiencies in a prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast on the prosecution". 13 That in my view applies to the present case. In other words, in my view, both on the RPS test and on the Weissensteiner test the remarks made by his Honour cannot be sustained. 14 The truth of the matter is in a criminal case where the accused remains silent there is almost no room for the operation of the principle of Jones v Dunkel and this must particularly be so in a case where, like the present, putting the Crown case at its most flattering it is tenuous. 15 In my view the following order should be made: One, appeal allowed; two, sentence set aside; three, there be a retrial. 16 GROVE J: I agree with the orders proposed by Meagher JA. 17 BERGIN J: I agree with the orders proposed by Meagher JA. 18 MEAGHER JA: The Court will, therefore, make the orders I just proposed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.