R v PAEK [1999] NSWCCA 184

New South Wales Court of Criminal Appeal CITATION : R v PAEK [1999] NSWCCA 184 FILE NUMBER(S) : CCA 60613/98 HEARING DATE(S) : 30 June 1999 JUDGMENT DATE : 30 June 1999

Regina (Crown)

PARTIES : v

Lenhi PAEK (Appellant) JUDGMENT OF : Grove J at 56; Abadee J at 57; Barr J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0773 LOWER COURT JUDICIAL OFFICER : Luland DCJ

RA Hulme (Crown) COUNSEL : GD Wendler (Appellant) CK Smith (Crown) SOLICITORS : Van Houten (Appellant) CATCHWORDS : Criminal Law - whether direction necessary that it would be dangerous to convict on uncorroborated evidence of an accomplice. ACTS CITED : Evidence Act s 164, 165(1)(d), (4), 165(2)(c) Regina v Yee Kam Lau, Court of Criminal Appeal 2.12.98 unrep CASES CITED: Longman v The Queen (1989) 168 CLR 79 Regina v Johnston (1998) 45 NSWLR 362 Regina v Spencer [1987] AC 128 DECISION : Leave to appeal refused; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60613/98

GROVE J ABADEE J BARR J

Wednesday, 30 June 1999 REGINA v Lenhi PAEK JUDGMENT

1 GROVE J: I will ask Justice Barr to give the first judgment. 2 BARR J: The appellant, Lenhi Paek, was convicted by a District Court jury of supplying not less than the commercial quantity of a prohibited drug, namely 440 grams of heroin. 3 Judge Luland of Queen's Counsel sentenced her to eight years' imprisonment, comprising a minimum term of five years and an additional term of three years. The appellant appealed against her conviction and sought leave to appeal against the sentence. She has not pressed her application for leave to appeal against the sentence. 4 The Crown asserted that the appellant supplied heroin to Van Hung Nguyen. There were only two witnesses to the precise conversations and arrangements made by and between Nguyen and the appellant, namely Nguyen and the appellant. Although there was a good deal of evidence from police officers who observed the movements of Nguyen, the appellant and others, they could not say precisely what was happening from time to time. 5 Nguyen's version was as follows. He lived in Melbourne. He telephoned the appellant and arranged to meet her at Sydney Casino. The two of them met there twice and on the second occasion they had a conversation about heroin. She mentioned a Chinese man who could supply it. She pointed him out. 6 Nguyen asked how much half a kilo would cost and the appellant said that she would find out. They arranged to speak about the matter later and the appellant gave Nguyen her telephone number. He telephoned her again within a couple of days and she told him that the man had quoted $96,000 for half a kilogram of heroin. 7 Nguyen made his own enquiries and collected money from people who would buy the drug from him. Then he telephoned the appellant and told her that he wanted to buy half a kilogram. A little later he was told by another Melbourne resident, Hai Le, that he wanted to buy half a kilogram as well and he telephoned the appellant and told her as much. 8 On 26 May 1997 the appellant told Nguyen that she could supply the drug. On the same day Nguyen flew to Sydney. A man called Minh, a resident of Sydney who had been temporarily visiting Melbourne, accompanied him. Nguyen had $96,000 with him. When Nguyen arrived in Sydney he telephoned Le and arranged to collect cash from him for his share. 9 Nguyen and Minh were met at Sydney Airport by a number of people in a Toyota Tarago van. They were the appellant and Minh's wife and sister, called In or Yen. Minh's wife drove the van and they all went to Newtown and had a meal at a restaurant. During the meal Nguyen asked the appellant whether the goods were ready and she said, "Nine o'clock". Nguyen again spoke to Le on the telephone. 10 Minh's wife and sister parted company from the group and Nguyen, the appellant and Minh returned to the van. The appellant told Minh to drive to Park Street, Sydney, and he did. On the way they stopped near Central Railway to pick up Le. Le got into the van and gave Nguyen money in a plastic bag. 11 Nguyen put the two bundles of money together. Le got out of the van and the other three continued the journey to Park Street. Minh parked the van and the appellant and Nguyen got out. Nguyen handed the bag of money to her and she said that she would return to the van in ten or fifteen minutes. 12 Nguyen was nervous about the matter in view of the substantial sum of money he had handed over and followed the appellant as she walked along the street. He saw her meet the Chinese man she had previously pointed out to him at the casino. He followed them until they entered a building. He waited outside the building and the appellant returned ten minutes later. She told him that the drug was in the handbag she was carrying. 13 They returned to the van and sat side by side in the back seat. The appellant took heroin out of her handbag and handed it to Nguyen. There were two packages and Nguyen put one of them on the front seat. That was for Le. He put his own in a bag and left it under his feet on the floor of the van. 14 The van moved off again and stopped at a place which had been arranged with Le. He got in, sat in the front seat, collected the drug intended for him and got out of the van again. He was arrested shortly afterwards with about 445 grams of heroin in his possession. 15 The van continued towards the western suburbs of Sydney and was stopped by police. The appellant and Nguyen were arrested and another, about equal, amount of heroin was found in the van. 16 The other account came from the appellant. She said that she was a beautician who was friendly with a customer of hers called Yen. She met her at the casino about a week before her arrest. Yen joined the appellant at her table and pointed out Nguyen who was nearby, and told her that he was her (the appellant's) foster brother. Nguyen looked at her and smiled. He exhibited a sentimental interest in her. 17 When the time came to go home, he offered her a lift. The next day he invited her out to lunch and they went to a Thai restaurant in Fairfield and then spent some time at a motel where he was staying. That would have been 21 May. 18 On 23 May he telephoned her and invited her to the casino for dinner. She accepted. At the casino Nguyen continued to display a friendly and sentimental attitude towards the appellant. They parted good friends on that night and Nguyen said that he was returning to Melbourne. There was no mention of drugs. 19 On 26 May Nguyen telephoned her again and told her that he was coming to Sydney and that he was missing her. She was thinking that she might like to go to the casino that evening and that she might ring a friend and suggest a visit. Then, luckily, Yen telephoned her and said she was going to go to the casino. The appellant accepted the offer of a lift. They arranged that Yen would collect her and she came to the appellant's home at six o'clock and picked her up in the Tarago van. Minh's wife was there as well. 20 Unexpectedly to the appellant, the van went to the airport and not the casino. When she arrived there she saw Minh and Nguyen. She was surprised. The group went to Newtown to a restaurant. During the time they were there, there were conversations between various members of the group which she did not understand. 21 After the meal Yen and Minh's wife decided to go home by taxi. The other three got into the van and Nguyen told Minh, the driver, to go to George Street. He made a telephone call. They went to George Street and there was Le. He got in and spoke to Nguyen about the money, whether there was enough. Nguyen told Le that when he was ready he would pick him up. 22 The van went to Park Street, but not at the appellant's directions. The van stopped and Nguyen got out carrying the bag. He asked the appellant to go with him, so she got out. He asked her to do him a small favour, to carry the bag and give it to a person waiting at the corner of a nearby building. 23 She said, "What's that, it's money, isn't it?" She thought it was money because she had heard conversation about money in the van. Nguyen said, "It's a lot of money in there. It's better if I stay back and watch out." The appellant thought that Nguyen was acting as he did out of fear of a possible robbery. 24 Nguyen told her to go to where there would be a man waiting. She complied with his request and met a man, who greeted her and asked her where her friend was. He kept walking and the appellant followed. He entered a building, but the appellant was afraid because she could not see Nguyen. The man reassured her and she accompanied him up in the lift. The man went through a doorway and the appellant waited outside. He came out again holding a small package. 25 The appellant was familiar with the system of pawning jewellery and other valuables and thought that what was happening was that Nguyen had previously pawned valuables and was now redeeming them. She took the bag, went down in the lift and found Nguyen waiting nearby. She told him she had something for him but he told her to leave it where it was. They returned to the van and got inside. 26 Nguyen took the package out of her bag and opened it. She did not look at what was in it. Minh made a telephone call, she assumed to Le, and the van started off again. When it stopped, Le got in. There was some conversation but she took no notice of it and after a short time Le got out again. 27 Nguyen then said that they would go to a motel and began holding the appellant's hand. On the way, they were stopped by the police and arrested. 28 She had no idea that Nguyen or Le were intending to buy drugs or that there were drugs in the bag the man handed to her to give to Nguyen. 29 The first ground of appeal argued asserted that his Honour failed to direct the jury that before they could convict the appellant they had to be satisfied beyond reasonable doubt that she knew that the quantity of heroin was not less than the commercial quantity. In summing up the case to the jury, his Honour said this: What is it then that the Crown must prove beyond reasonable doubt? The Crown must prove to you these three elements before you convict the accused and prove them beyond reasonable doubt, as I say. First, it must be proven by the Crown that the accused knowingly supplied a substance; it must be then proved that the substance that she in fact supplied was a prohibited drug; and thirdly, in respect of this case, it must be proved that the amount of the prohibited drug she supplied was not less than a commercial quantity of that prohibited drug. Let me deal with the second and third elements of those, first of all. It would seem that those particular elements are not in dispute in this case in that it has not been contested, as I see it, that the substance that was ultimately found both in Hai Le's possession and also in the motor van that was stopped by police, there has been no issue that the substance was not in fact heroin. 30 Later on his Honour said this: ... there has been no challenge that it was in excess of 250 grams, so it would seem to me that you would have to spend little time being satisfied beyond reasonable doubt that both it was a prohibited drug and that it was not less than a commercial quantity. As both counsel have indicated, this case is really about whether the accused knowingly supplied that heroin to any person.