Nguyen v R [2007] NSWCCA 249

Reported Decision: 173 A Crim 557

New South Wales Court of Criminal Appeal

CITATION: Nguyen v R [2007] NSWCCA 249

HEARING DATE(S): 29/06/07

JUDGMENT DATE: 22 August 2007

JUDGMENT OF: Spigelman CJ at 1; James J at 2; Hislop J at 90

DECISION: Appeal against conviction on first count allowed. Verdict of guilty on first count quashed. New trial of charge on first count ordered. Sentence on second count quashed. Appellant re-sentenced on second count.

CATCHWORDS: CRIMINAL LAW - drugs - expert evidence as to meaning of words in conversations

Criminal Appeal Act LEGISLATION CITED: Drug Misuse & Trafficking Act Evidence Act

Keller v R [2006] NSWCCA 204 Makita (Australia) Pty Limited v Sprowles (2001 52 NSWLR 705 CASES CITED: R v David and Gugea (unreported NSWCCA 10 October 1995) R v Huynh (unreported NSWCCA 13 May 1996) R v Lam (2002) 135 A Crim R 302

PARTIES: Quang Duc Nguyen v R

FILE NUMBER(S): CCA 2007/3192 (formerly 2007/514)

COUNSEL: A Haesler SC (Appl) M J King SC (Crown)

SOLICITORS: Kings Lawyers (Appl) Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1001

LOWER COURT JUDICIAL OFFICER: Andrew ADCJ

IN THE COURT OF CRIMINAL APPEAL 2007/514

SPIGELMAN CJ JAMES J HISLOP J

WEDNESDAY 22 AUGUST 2007 QUANG DUC NGUYEN v R Judgment 1 SPIGELMAN CJ: I agree with James J. 2 JAMES J: Quang Duc Nguyen appealed against his conviction for supplying not less than a commercial quantity of heroin. 3 At his trial the appellant had been indicted on two charges, namely supplying not less than a large commercial quantity of heroin (count 1 in the indictment) and conspiring to import not less than a trafficable quantity of cocaine (count 2 in the indictment). 4 The jury found the appellant not guilty of supplying not less than a large commercial quantity of heroin but guilty of the lesser offence, which was left to the jury as an alternative, of supplying not less than a commercial quantity of heroin. Under the Drug Misuse & Trafficking Act the commercial quantity applicable to heroin is 250 grams and the large commercial quantity applicable to heroin is 1 kilogram. 5 The jury found the appellant guilty of the offence charged in the second count in the indictment and no appeal was brought by the appellant against his conviction on that count. 6 No application was made by the appellant for leave to appeal against either of the sentences which were imposed on him for the offences of which he had been found guilty. 7 At the trial the Crown case against the appellant on the first count in the indictment consisted of:-