New South Wales Court of Criminal Appeal CITATION : REGINA v NGUYEN [2004] NSWCCA 16 HEARING DATE(S) : 3 February 2004 JUDGMENT DATE : 13 February 2004 JUDGMENT OF : Giles JA at 1; Hulme J at 5; Adams J at 6 DECISION : Appeal allowed; conviction quashed; verdict of acquittal entered. CATCHWORDS : Conviction appeal - deemed supply of traffickable quantity of heroin in possession of co-accused - circumstantial evidence - sufficiency of evidence of joint possession - evidence incapable of justifying verdict - acquittal entered LEGISLATION CITED : Criminal Appeal Act 1912 s6 Drugs Misuse and Trafficking Act 1985 s25(2) Fleming v The Queen [1998] HCA 68, (1998) 73 ALJR 1, 158 ALR 329, 103 A Crim R 121 CASES CITED : Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 PARTIES : Regina v Van Nam Nguyen (Appellant) FILE NUMBER(S) : CCA 60374/03 COUNSEL : D Frearson (Crown) D Brezniak (Appellant) SOLICITORS : S Kavanagh (Crown) F McGowan (Appellant) LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0149 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60374/03 GILES JA HULME J ADAMS J FRIDAY 13 FEBRUARY 2004 REGINA v VAN NAM NGUYEN Judgment 1 GILES JA: I have had the advantage of reading in draft the reasons of Adams J, with which the following should be read. 2 Essential to the Crown case was that the appellant was in possession of the heroin in the video case jointly with Nghia. The heroin was in the physical custody of Nghia when the HiAce van was stopped by the police. The hypothesis in the Crown's address to the jury was that the appellant had flown to Sydney to obtain heroin, had obtained the heroin at Cabramatta, and was using Nghia to take it back to Brisbane by road. From the appellant's fingerprint inside the video case, he had at some time handled the video case. It was suggested that the fingerprint plus the evidence of the way in which the appellant and Lam flew to Sydney, of the appellant's movements including contact with Nghia whilst in Sydney and the telephone calls between the appellant's mobile phone and Nghia's phone, of the appellant's possession of substantial cash and of the appellant's possession of the piece of paper listing names and amounts of money together supported the hypothesis and warranted the conclusion that the appellant and Nghia were jointly in possession of the heroin. 3 Adams J has outlined the evidence. It could found suspicion that the appellant's trip to Sydney was drug-related. I cannot see, however, that the jury could find beyond reasonable doubt that whatever drug dealings might be suspected resulted in the appellant having an interest in or arrangement in relation to the particular video case of heroin such that he possessed it jointly with Nghia. Even if the jury did not believe the appellant's evidence, in my opinion the step from general suspicion to joint possession of the heroin in the video case was not open to the jury and the evidence in the Crown case could not provide satisfaction beyond reasonable doubt on the offence charged. 4 I agree that the appeal should be allowed, the appellant's conviction should be quashed, and a verdict of acquittal should be substituted. 5 HULME J: I agree with the orders proposed by Adams J and generally with His Honour's Reasons. Such differences as I have with His Honour's remarks do not go to any of His Honour's essential reasoning and in the circumstances it does not seem necessary for me to pursue those differences. 6 ADAMS J: This appeal is brought from the appellant's conviction in the District Court of an offence under s25(2) of the Drugs Misuse and Trafficking Act 1985 that he jointly with Van Nghia Nguyen (Nghia) on or about 20 November 1999 at Sydney and other places in the State of New South Wales did supply a prohibited drug, namely heroin, in an amount of 350.5 grams, being a quantity not less than the commercial quantity for that drug. Nghia, who was tried with the appellant, was also convicted of that charge together with a charge of possessing a firearm. The heroin to which the charge refers was found by police in a video case after a white van (the Hiace) then being driven by Nghia was stopped by police near the Cessnock exit on the F3 Freeway at Cooranbong at about 11.30 pm on 20 November 1999. 7 The Crown case was articulated in the learned trial Judge's directions to the jury in the following way – "… [If] the Crown establishes that either accused had in possession more than 3 grams of heroin, then the law deems him to be in possession for supply. The Crown does not have to prove any actual supply or handing over to any other person. So the real issue here is whether either accused had in possession the amount of heroin which the Crown alleges that each of them did have. Now, how does the Crown prove that either accused possessed the heroin? These parts of the Crown case, that is that the accused were engaged in a joint criminal enterprise to supply heroin in an amount of more than the commercial quantity, and also that the accused were in possession of that quantity of heroin, relied on circumstantial evidence. That means that the Crown can lead no direct evidence that either accused knowingly had control or custody of the drug." 8 So far as the appellant is concerned, the learned trial Judge directed the jury as follows – "The Crown says that when you look at … [the] evidence in totality and including the evidence that the accused gave, you would be satisfied beyond reasonable doubt, firstly that he was engaged in a joint criminal enterprise with the co-accused Van Nghia Nguyen to supply heroin, and secondly, that he was in possession of the heroin that was located in the accused's Van Nghia Nguyen's car. That is, that, although the accused Van Nghia Nguyen had physical custody of the heroin, the Crown says that the accused Nam was jointly in possession of that heroin in the sense that he had control over the heroin and it is therefore deemed to be in his possession." 9 It is not altogether easy to understand why the Crown case was put in this way. If the jury were satisfied beyond reasonable doubt that the appellant and Nghia were indeed engaged in a joint criminal enterprise to supply heroin of at least a commercial quantity, of which the heroin found in the vehicle driven by Nghia was a part, the fact (if it were the fact) that the heroin was in the joint possession of both of them was immaterial. However, the learned trial Judge gave the jury written directions in the following form – "The Crown must satisfy you beyond reasonable doubt of each of the following elements or ingredients. That the accused: 1. supplied – that is, he had it in his possession for supply 2. a prohibited drug, namely heroin 3. which was not less than the commercial quantity applicable to that prohibited drug. The traffickable quantity of heroin is 3g. The commercial quantity of heroin is 250g." 10 It is therefore clear that the Crown case was that Nghia was in possession of the heroin which, because it was greater than the traffickable quantity was deemed to be possession for supply and that, because of an arrangement between Nghia and the appellant in respect of the heroin, it was also in the possession of the appellant and, hence, he was also deemed to have it in his possession for the purpose of supply. The Crown case was not that the appellant and Nghia were engaged in the enterprise of supplying commercial quantities of heroin but that they were deemed to be engaged in the enterprise of supplying the particular heroin found in the car which, it was argued, was the joint possession of both of them because it should be inferred that, although the appellant did not have actual physical custody or control, his agreement with Nghia gave him control to the exclusion of others except, of course, Nghia. Regrettably, the learned trial Judge never specified for the assistance of the jury the precise manner in which it was alleged by the Crown that the appellant was in joint possession of the 350.5 grams of heroin found in the vehicle. In this respect, her Honour gave the following example – "Most of you probably have a television set in your home. Even though right now you are here in this courtroom and the television is back at your home the law would regard you nevertheless as being in possession of that television set. You and your partner, or wife, or husband, may well have bought the television set jointly and you might accordingly both own it. The law would regard you, as well as your partner, husband, wife, whatever, as being in possession of it." 11 In the context of this case, however, that example was bound to be somewhat confusing: possession of the television set did not depend at all upon joint ownership, rather on its presence in a home in the joint occupation of the persons in question with the agreement that both had control over it. It is obvious that not everything in premises jointly owned and jointly occupied will be in the possession of both persons since there well may be an agreement (implicit or otherwise) that the private and personal property of each is not subject to the control of the other. This matter of joint control was a vital element to be proved in the prosecution case against the appellant and indeed, her Honour directed the jury, as I have set out above, that his possession of the heroin in the vehicle depended upon proof that he had control over it, although he was in Cabramatta and Nghia was in the Hiace travelling north. The process of reasoning, however, that might justify the conclusion that the appellant had joint control over the heroin, and the sense in which "control" was to be understood was never explained to the jury. The mere fact that Nghia was on his way to supply the heroin pursuant to an arrangement with the appellant to do so (if that were the fact), did not give the appellant any physical control over the heroin in the vehicle, even if Nghia had been physically entrusted with the heroin by the appellant (as to which there was no evidence). Some measure of physical control is of the essence of the notion of possession and I am unable to see how the heroin in question here could be said to have been in the possession of the appellant jointly with Nghia, whatever their arrangement may have been about its delivery. However, as this matter was not argued before us or, for that matter, debated before the trial judge, I will say no more about it. 12 The prosecution case was circumstantial, and largely depended upon inferences which, it was argued, could be drawn from four classes of evidence: firstly, the way by which the appellant travelled to Sydney in the company of one Lam on the day before Nghia's arrest and his possession of an unusual amount of cash; second, the appellant's movements in the Cabramatta area on his arrival and his association over that period with Nghia; third, the fact that his fingerprint was found inside the case in which the heroin was discovered by police; and, fourth, his possession of a piece of paper which contained a list of names and amounts of money, though whether they were owed or owing or had been paid was unclear (the appellant said they were gambling debts owed to him). 13 The appellant gave evidence. His case, in essence, was that he had nothing to do with any drug transaction and that his association with Nghia was innocent, and that the matters relied on by the prosecution as incriminating were in fact innocent. 14 The appellant makes a number of complaints about the emphasis of the summing up. These complaints are, in my view, unfounded and, having regard to my view about the principal ground of appeal, it is unnecessary to say anything more about them. The principal ground of appeal arises under s6 of the Criminal Appeal Act 1912 namely, that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence. The substance of the argument made on this ground is that the evidence did not justify the conclusion that the appellant and Nghia were engaged in any arrangement concerning the heroin found in the latter's possession. 15 It is convenient to consider the prosecution case by reference to the four classes of evidence which I have set out above. The appellant travelled to Sydney by air on 20 November 1999 with one Lam (whose fingerprint was also found inside the video case), paying for the tickets in cash but only obtaining one-way tickets. The tickets were in the names of both the appellant and Lam. The appellant booked into a hotel for one night with Lam, again using their own names. He hired a car using a credit card, again in his name. Although, no doubt, the fact that the appellant came to Sydney by air is consistent with an intention to conduct some illegal transaction in Sydney, it is obviously also consistent with an entirely innocent journey, as asserted by the appellant in his evidence. The use by the appellant and Lam of their own names, rather supports the innocence of their travel. To my mind this evidence is completely neutral, whether considered by itself or in conjunction with the other evidence in the case. 16 The prosecution also relied on a number of telephone calls between the appellant's mobile phone and Nghia's and his movements in Cabramatta after his and Lam's arrival. The appellant departed Brisbane just before 9 o'clock on 20 November 1999 and hired a Toyota Camry at the airport, using his own credit card. A number of telephone calls were made from his phone to Nghia's phone but it is not possible to establish that either of them actually conversed at those times although it seems very likely that they did. The calls were short and (if the appellant's evidence is disregarded) their content is unknown. At about 2 pm on 20 November, the Camry, driven by the appellant with Lam in the passenger seat, went to a motel near the Hume Highway at Landsborough. The Hiace was driven by Nghia into the motel parking area and Nghia entered the backseat of the Camry. The appellant and Lam booked into the motel for one night. The Camry was parked next to the Hiace and all three men walked to the appellant's motel room. Something like an hour later, the appellant drove the Camry with Lam as a passenger to premises in Hill Street, Cabramatta. After about twenty minutes, the Camry left, again with the appellant and Lam, together with another passenger, Hung. The appellant said that, whilst he was at Hill Street, in the company of Lam, Hung, another man called Dung and Nghia, there was a discussion about looking at videos and a number of video cassettes were looked at by them for this purpose. (The appellant said – and the Crown did not attempt to disprove – that Hung and Dung were brothers and friends of Lam who lived at the Hill Street premises.) This is his explanation for the fingerprint on the inside of the case containing the heroin. If this explanation is not accepted, there is no evidence at all as to how or, even more importantly, when, his fingerprint was placed in the case. Police surveillance disclosed that the appellant drove the Camry at 4.20 pm to Gladstone Street, Cabramatta with Lam and Hung as passengers. They all remained in the car while two males entered it briefly. About ten minutes later the Camry was driven by the appellant again with Lam and Hung as passengers to an address at Canley Vale where it was parked, one man alighted and spoke to another man in the front driver's seat of another vehicle. Five or six minutes later, the Camry was driven by the appellant with his passengers back to Gladstone Street and, a couple of minutes later, onto High Street where another passenger was, it seems, acquired. The Camry was then driven to Field Street, Canley Heights where the four passengers (including the appellant) entered a restaurant where they stayed for about two hours. It seems reasonable to infer that they were eating an evening meal. At about 7 o'clock the four men came out of the restaurant and, walking to their vehicle (the Camry) they spoke to a person in a parked car. Shortly after, there was a brief telephone call from the appellant's mobile phone to Nghia, who was back at the motel. Shortly after this the Camry returned to Hill Street where Hung and one of the other passengers alighted. The appellant with Lam then drove the Camry back to Blair Place, Cabramatta and the vehicle was parked. About twenty minutes or so later, the two men returned to the motel, parking the Camry next to the Hiace. The appellant walked round to the passenger side of the Hiace and looked into the window, walked to the back of the vehicle, back to the Camry and then to his room. A few minutes later, the appellant and Lam left the motel in the Camry with Nghia following in the Hiace. They went to Hill Street but, a minute after arriving, the Camry was driven back to the motel by the appellant with Lam. The appellant claimed that he returned to the motel because he had left his mobile telephone in the room. About ten minutes after arriving at the motel the Camry was driven back to Hill Street by the appellant with Lam. Twenty-five minutes later the Hiace driven by Nghia and the Toyota driven by the appellant with Lam, went to Blair Place once more, left there after five minutes or so and returned to Hill Street. The Hiace also returned to Hill Street. Some conversations with several Asian men occurred at the Camry and after about another twenty-five minutes the appellant drove the Camry to several locations in Cabramatta, in the course of doing so parking the car and speaking to the occupants of another vehicle which was nearby. We have now reached shortly after 9.30pm, when there was a brief telephone call between the appellant's mobile phone and Nghia's after which Nghia, who was at Hill Street, got into the Hiace and started driving north on the Cumberland Highway. The Camry was driven by the appellant, with Lam, from McBurney Road to Hill Street (a journey of about five minutes). The Camry arrived back at Hill Street a minute or so after Nghia had left in the Hiace. The Hiace was followed by police and, as I have mentioned, was stopped at around 11.30 pm. There was no evidence as to when or where the heroin was placed in the video case. There was no evidence as to whether the appellant was present at the time. It is obvious from the above summary that Nghia and the appellant spent some time in each other's company but also that they spent even more time apart. The evidence did, however, demonstrate that Ngia's acquisition both of the heroin and the case may well have occurred in the absence of the appellant. 17 Following the arrest of Nghia, calls were made to his phone from the appellant's mobile phone at 12.34 am (5 seconds), 8.43 am (7 seconds) and 9.12 am (5 seconds). It does not seem to me that these calls added anything of substance to the prosecution case. 18 At about 10.25 am on 21 November 1999, police searched the appellant as he left his motel room in the company of Lam and Hung. He was searched and $960 in assorted notes were found in his wallet with a further $4,000 in two lots of $2,000 in new $100 notes were found in a bag in the boot of the Camry. No drugs were found. The appellant was then released. He was arrested in April 1999, after his fingerprint was identified in the video case. 19 The appellant gave evidence in chief and under cross-examination about his movements as observed by police. It is sufficient to say that the appellant said that he was acquainted one way or another with the men in whose company he had spent the afternoon and evening of 20 November and that he had simply been making contact either on his own behalf or on behalf of his other acquaintances. No attempt was made by the prosecution to controvert this evidence. 20 The prosecution did not suggest that any transactions had occurred at any of the meetings observed by the police and although the nature of the brief meetings might give rise to the suspicion of some unlawful activity – though this depends upon unwarranted general assumptions about how people might socialise – I do not see how they can rationally support the inference (as distinct from the suspicion) that the appellant was conducting any kind of business, let alone one involving the supply of drugs. Even if he were conducting such a business, it seems to me that it is not reasonable to move from the fact of those meetings to the conclusion that Nghia's possession of the video case containing the heroin was undertaken by virtue of a joint agreement with the appellant to supply that heroin. 21 Amongst the items taken from the appellant's wallet was a page containing fourteen names and various amounts corresponding to them. 22 The appellant said that $3,000 of the $4,000 cash found by the police when was searched was money which he had saved and $1,000 was borrowed from his mother. He said that the notes were new because he had been gambling the week or so before the trip to Sydney and had exchanged his chips for the notes at the casino. He also intended to do some shopping in Sydney for his wife and children and intended to buy a car to re-sell in Brisbane. As to the list of names, the appellant said that they were moneys owed to him by persons with whom he played cards. The prosecution submitted that this list was consistent with a record of payments made for drugs or money owed to persons for the supply of drugs but it seems to me an inference to this effect could not be justified whether the document was taken by itself or in conjunction with the other evidence. At all events, its possible connection with the heroin found in the vehicle is purely speculative. So far as the cash is concerned, the appellant only earned about $370 a week at the time but he lived with his parents. He was a gambler and a member, he claimed, of a casino. The sum of money is not indicative to my mind of criminal activity and, even if it were, its possible connection with any alleged transaction involving a drug transaction, let alone the heroin in the Hiace, is again purely speculative. 23 It remains to add that it was not submitted that there was any particular reason for disbelieving the appellant that arose from his evidence. I would comment, in addition, that where a witness is of a different cultural background to the jury and English is not his or her first language (the appellant was born in Vietnam and came to Australia with his parents when he was seven years of age), it is very dangerous indeed to draw any conclusions from their demeanour. 24 In considering the application of s 6(1) of the Criminal Appeal Act 1912, the relevant test to be applied to ascertain whether "the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence" is whether the Court is of the view that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The test articulated by the majority in M v The Queen (1994) 181 CLR 487 is still applicable notwithstanding the abandonment of the phrase "unsafe and unsatisfactory" which had hitherto been commonly used in this context (Fleming v The Queen [1998] HCA 68, (1998) 73 ALJR 1, 158 ALR 329, 103 A Crim R 121): see Jones v The Queen (1997) 191 CLR 439 per Gaudron, McHugh and Gummow JJ at 450-2. In M , the majority said (181 CLR at 493) – "In answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to these considerations." The application of the test was explained as follows (181 CLR at 494) – "In most cases a doubt experienced by an appellate court will be doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." 25 In Jones, Gaudron, McHugh and Gummow JJ point out (191 CLR at 452) that the "open to the jury" test is significantly different to that implied by asking whether the jury must have had a reasonable doubt or whether the evidence for the prosecution was so weak or flawed as to make it wrong for the jury to accept it. These latter tests were described by their Honours as "much stricter" than the test formulated by the majority in M (181 CLR at 453). 26 In my judgment, the prosecution case here fell far short of being capable of proving beyond a reasonable doubt that the appellant was guilty of the crime charged against him. In my opinion, there was no evidence fit to go to the jury that the heroin found in the Hiace was in the appellant's possession nor, in my view, that the appellant was engaged in a transaction with Nghia to supply drugs, or to supply the heroin found in the Hiace. 27 I have therefore concluded that "the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence" and propose that a verdict of acquittal should be substituted. ********** Last Modified: 02/18/2004 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.