Pham v Regina [2006] NSWCCA 3

New South Wales Court of Criminal Appeal

CITATION: Pham v Regina [2006] NSWCCA 3

HEARING DATE(S): 23/01/2006

JUDGMENT DATE: 23 January 2006

JUDGMENT OF: McClellan CJ at CL; Howie J; Latham J

EX TEMPORE JUDGMENT DATE: 01/23/2006

DECISION: Application for leave to appeal is refused.

CATCHWORDS: Criminal Law - Separate trial application refused by trial judge - application for leave to appeal - whether joint trial would render unfair the trial of the applicant by reason of strength of Crown case against co-accused.

Criminal Appeal Act 1912 - s 5F LEGISLATION CITED: Drug Misuse and Trafficking Act 1900 - s 21(2) Criminal Procedure Act 1986 - s 21 (2)

CASES CITED: R v Middis (unreported, SCNSW, 27/3/1991)

PARTIES: Cuong Pham v Regina

FILE NUMBER(S): CCA 2005/2439

COUNSEL: G. Rowling - Crown A. Leary - Applicant

SOLICITORS: S. Kavanagh - Crown A. Bilias - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/0205

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/2439

McCLELLAN CJ AT CL HOWIE J LATHAM J

MONDAY 23 JANUARY 2006 Cuong PHAM v Regina Judgment 1 HOWIE J: This is an application pursuant to section 5F of the Criminal Appeal Act 1912 for leave to appeal against an interlocutory judgment of Sorby DCJ refusing an application for a separate trial. The applicant is to stand trial together with his co-accused, Van Quyen Nguyen, upon a charge that they knowingly took part in the cultivation of a commercial quantity of cannabis plants contrary to the provisions of s 25(2) of the Drug Misuse and Trafficking Act 1900. 2 The application for a separate trial was made under s 21(2) of the Criminal Procedure Act 1986, on the basis that the Crown case against the applicant was substantially different in character from that of the case against his co-accused. It was further argued that, if the trial were to proceed as a joint trial, the applicant would suffer extreme prejudice and embarrassment which could not be remedied by any direction or warning to the jury. 3 The submissions filed on behalf of the applicant were supplemented in oral argument by Mr Leary. The submissions today go further than the submissions made to the trial judge and it is suggested that it would be unfair for the applicant to have to stand trial with the co-offender by reason of the fact that the case against the applicant is almost non-existent and that there is a very good chance, so it is said, that the applicant would receive a verdict by direction at the end of the Crown case and that it would be unfair for him to be placed in jeopardy of a conviction because of the evidence against the co-offender that was not admissible against the applicant. 4 The charge arises from the cultivation of 414 cannabis plants grown hydroponically at 233 River Road Revesby. The premises at that address are a single story brick house with four bedrooms, a living room, kitchen, dining room and a detached rear garage. The plants were grown in the bedrooms. In the dining room 36 electrical transformers were stacked and wired to each of the bedrooms. A number of cooling fans were aimed towards these transformers. 5 During January 2005 police commenced investigations into the cannabis being grown in the premises. The police were granted a search warrant for the premises on 8 February 2005. The next day at 5.20pm the police were conducting surveillance of the premises when a vehicle arrived with two male occupants. The police sought entry into the premises, announcing who they were, but the occupants refused to open the front door. Shortly after, the applicant ran from the rear door into the yard and climbed the rear fence. He was arrested in the premises at the rear of 233 River Road. The second male evaded police and could not be identified. 6 In the lounge room of the premises police located a wallet in the pocket of a pair of jeans draped on a bed. The wallet contained the applicant's driver's licence. DNA matching that of the applicant was detected on a Coca Cola can in the kitchen. There is no direct evidence that the applicant had attended the premises prior to the date of his arrest, however the Crown alleges that the presence of the applicant's wallet and DNA within the premises indicate that this was not the first time he had been there. 7 The case against the co-accused is supported by surveillance evidence of the premises over the period 1 February to 9 February 2005. On 1 February police began surveillance of the premises at 12.05pm. A green Honda Accord was parked in the front yard. At 12.25pm a male was seen to exit the premises and drive off in this vehicle. On 2 February at 12.00pm the same vehicle was seen parked in the front yard and a male entered the premises. At about 7.20pm that same person opened the side gate to allow a black Commodore entry into the back yard. Nguyen later identified himself as the person photographed carrying out this activity.