Huynh v R [2009] NSWCCA 65

New South Wales Court of Criminal Appeal

CITATION: Huynh v R [2009] NSWCCA 65

HEARING DATE(S): 9 February 2009

JUDGMENT DATE: 13 March 2009

JUDGMENT OF: Grove J at 1; Blanch J at 54; Kirby J at 55

DECISION: Appeals dismissed.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Supply of prohibited drug - Trial by judge without jury - No error by judge in approach or in findings - Sentence - Standard non-parole period applied - No basis for reduction of sentence demonstrated

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED : R v Way (2004) 60 NSWLR 168 The Queen v De Simoni (1981) 147 CLR 383

PARTIES: The Thu HUYNH - Applicant REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/14805

COUNSEL: W Dawe QC - Appellant N Noman - Respondent/Crown

SOLICITORS: Peter Murphy - Appellant Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0384

LOWER COURT JUDICIAL OFFICER: Ainislie-Wallace DCJ

LOWER COURT DATE OF DECISION: 27 March 2008

IN THE COURT OF CRIMINAL APPEAL CCA 2007/14805

GROVE J BLANCH J KIRBY J

13 March 2009 The Thu HUYNH v REGINA Judgment 1 GROVE J: This is an appeal against conviction on an indictment charging the supply of a commercial quantity of the prohibited drug heroin. The appellant was tried at Sydney District Court by Ainslie-Wallace DCJ sitting without a jury. Upon conviction her Honour sentenced the appellant to imprisonment consisting of a non-parole period of 10 years with a balance term of 3 years. In the alternative to the appeal against conviction, the appellant seeks leave to appeal against sentence. 2 The Crown case was based upon a supply which took place in Melbourne, Victoria. No issue is raised challenging the necessary geographical nexus and procedural requirements which enabled prosecution in this State pursuant to Pt 1A of the Crimes Act 1900. 3 As her Honour found, there was no direct evidence that the appellant supplied drugs and the Crown relied upon proof by circumstance. In brief, in early to mid May 2005 police, pursuant to warrant, intercepted calls on designated telephone services. A number of calls were made between one Sang Pham (also known as Van Diep Pham) who, for present purposes I will refer to as Sang and the appellant. The evidence included formal admission by the appellant pursuant to s 184 of the Evidence Act of the identities of herself and Sang as the speakers on seventeen scheduled intercepted calls. 4 The schedule records the first of these calls on 11 May 2005 when Sang rang the appellant at about 10.50 pm. On the following day (12 May) there were three calls between them, two of which were initiated by the appellant. On the next day (13 May) seven calls were made between them, in five of which the appellant was the caller and on 14 May another seven calls were made, in six of which Sang initiated the calls. As will appear, in the early hours of 15 May, Sang was arrested in Sydney. 5 I shall refer to some of the content of these calls in due course. Also admitted into evidence, but for a limited purpose, were intercepted conversations between Sang and others including Anh-Ba Tran (also known as Thai-Phong and John Xanvi Tran), Truc (also known as Minh or Dao Tan Dung), Ca-Lam (also known as Trieu or "the stutterer") and Ho or Hoa (a female). Detective Sergeant Cadden testified that, in relation to this investigation, he had been given a compact disc containing approximately one thousand transcribed telephone conversations. 6 On 14 May 2005 (the last day of telephone communication between the appellant and Sang) at 6.14 pm Sang booked a seat on an overnight bus service departing Melbourne at 7 pm for Sydney. Shortly after 4.30 am on 15 May Detective Senior Constables Wilson and Hong were patrolling in the area of Liverpool Bus Terminal. They observed Sang who had alighted from a bus and was making his way towards the railway station and they spoke to him. Ultimately he was detained and searched. He was found to be in possession of two brown packages, each weighing a little over 350 grams, the contents of which were later identified as heroin. Also in his possession was a large amount of cash, which he told the arresting officers was "about $15,000". Subsequently a count established the amount as $17,200. 7 Sang was charged with supplying a commercial quantity of prohibited drug (heroin) and jointly tried with Anh-Ba on this and other counts of criminal drug supply before Sweeney DCJ and a jury. They were indicted as Pham Van Diep and Tran John Xanvi. They were convicted and sentenced for multiple offences which included a count relating to the drug which Sang had brought with him on the bus from Melbourne, and was the basis of the charge against the appellant. 8 On 31 August 2006 an extra-territorial warrant was executed on the appellant's premises in Victoria and following a search, arrangements were made for her appearance at Melbourne Magistrates Court. She was there bailed to appear at Sydney Central Local Court on 21 September 2006. She attended and thereafter was taken to Surry Hills Police Station where she was charged with the current offence and again released on bail. 9 The trial was heard between 5 and 14 November 2007 and the appellant was committed into custody on 29 November 2007 when her Honour delivered judgment finding the appellant guilty on the indictment. 10 The appellant lodged a notice relying upon five grounds of appeal against conviction. 11 Ground 1: The case against the appellant is a circumstantial case. Her Honour failed to recognize that the evidence is also reasonably consistent with an alternative scenario consistent with innocence. 12 Her Honour was explicitly alert to the requirements imposed upon her as a fact finder when the Crown relied upon circumstantial evidence. At the outset of her judgment she stated: "There is no direct evidence that the accused supplied the drugs to Sang. The Crown relies on a circumstantial case to prove the charged against the accused. In any case where the Crown asks that the guilt of the accused be determined inferentially, I must be satisfied that the conclusion of the accused's guilt is not only a reasonable conclusion arising from the facts and circumstances established by the evidence but that it is the only reasonable conclusion arising from those facts and circumstances. If at the end of my consideration of the evidence, I find that there is a reasonable conclusion arising from the facts and circumstances established by the evidence which is inconsistent with the guilt of the accused then I must find the accused not guilty of the charge." 13 It was submitted that her Honour formed an unfavourable opinion as to the credibility of the appellant. Undoubtedly she did. Assessing credibility of all witnesses, including the appellant, was part of her role. She gave reasons for her determination that "the evidence of accused is unreliable and she is not to be accepted". She later stated "the whole of her evidence lacked credibility". 14 Having made those findings, her Honour was nevertheless alert to avoid the error of using the rejection of the appellant's testimony to discharge the burden of proof which lay on the Crown. She observed: "Such are the inconsistencies, the inherent improbabilities and the lack of cogency in her evidence, I am satisfied that the accused is not a credible witness. However, even putting her evidence to one side, I am still required to determine whether the Crown has proved its case beyond reasonable doubt and as part of that determination, whether I am satisfied beyond reasonable doubt that the accused is discussing the supply of two blocks of heroin to Sang and did give him two blocks of heroin." 15 Reference was made to the testimony of the appellant, that her conversations with Sang related, inter alia, to an intended loan, to food and to milk. Further, it was submitted that the possession of $17,200 by Sang when arrested was consistent with the appellant's description of lending him $20,000 when she last saw him. She also testified to observing him immediately hand two small bundles of cash (a bundle apparently being $1000) to the man Trieu. Obviously those arguments could be advanced and were advanced to her Honour but she rejected the testimony of the appellant and she was not obliged to determine alternative facts and circumstances concerning the cash in Sang's possession. One of her functions was to determine whether there was any credibility attached to the version advanced by the appellant and she held that there was not. 16 At the hearing of the appeal, some stress was laid upon the finding of the cash in Sang's possession as supportive of the appellant's contentions. Leaving aside the somewhat obscure evidence of the appellant concerning the sources of money which she loaned to a man to whom she had been recently introduced by a friend (Doan), a woman whose occupation was piecework clothing manufacture, and the appellant's involvement in Hui, (which she described as a type of community lending arrangement at high interest), it was scarcely surprising that her Honour was not persuaded to attach credibility to the appellant's version. 17 It was said that the appellant had loaned $20,000 to this stranger because her friend Doan guaranteed it. Her evidence concerning her reaction to the substantial loss which she claimed was unconvincing. In submissions at the hearing of the appeal it was asserted that the appellant had unsuccessfully sought to recover the money which she claimed to have loaned to Sang from Doan as guarantor. There was little to support this proposition. The appellant gave evidence at her trial and was cross examined on this topic, she gave this evidence: "Q. Has he (Sang) returned any money to you? A. No, not even a cent for interest. Q. Not even 1 cent? A. That's right, not even a cent. Q. You've lost the capital and you didn't earn any interest. Is that right? A. That is correct. Q. Did you tell Doan? A. I have the lost the telephone number." 18 It is to be recalled that Sang was arrested in May 2005 and the appellant was not approached by police until August 2006. She testified that she had not spoken to Doan during 2006 but had spoken to her "very often" in 2005. She said: "Q. After you had given the money to Sang, did you ring Doan and tell her that you had given him $20,000, as she had asked you to help? A. Yes. Q. When did you speak to her? A. I talked to her several times but now you're asking me what date, then I cannot remember. Q. When did you first find out that the man Sang was arrested? A. About two weeks after. Q. After what? A. After I gave him the money. Q. That's on 14 May, is it? A. Only approximate time because I cannot be accurate about the date. That was quite normal things. Q. Towards the end of May 2005? A. Yes. Q. Did someone tell you? A. I rang – I made a phone call asking for the money. Q. Who did you ring? A. I rang Doan. Q. In May? A. Just about two or three weeks after that. Q. But you gave Sang three months to pay. A. Yes, three months term but he had to pay me interest every month and the interest was $1,000. Q. In that conversation with Doan, did she indicate to you that she would give you back $20,000 plus interest? A. She said to me that she was not going to pay me interest but she would with the principle. (sic)." 19 The money which the appellant claimed she had given to Sang was said to come from Hui, friends and family (that is to say, her father). She said she had repaid her father because she "always had three Hui and for each of the Hui in a year I would have between twenty and fifty percent interest". This explanation does not sit comfortably with obtaining any funds from Hui to lend to Sang (and presumably becoming liable to pay interest). Obviously to earn interest one would need to be a lender rather than a borrower. There was no suggestion that the appellant had directed Doan to the Hui so that Doan could fulfil her guarantee to the appellant of the loan allegedly made to Sang. 20 The appellant's manoeuvring on the subject was further illustrated by this exchange in cross examination: "Q. Didn't you tell the court last week that, in order to ensure that there was some trust in you, you repaid the money so that your father could give you the money again? A. When I was talking to my father over the phone, my father just wanted to check to see if the money was still available, if the money was still in the Hui or if I had spent money for other things. Q. When did you speak to your father on the phone? A. I did not have to talk to my father over the phone because I went to visit him very often in person. Q. Why did you say you spoke to your father on the phone? A. I've just said to him like that, but I didn't have to prove to him about getting the money and I didn't have to bring Sang to my father to prove that I'm going to get the money and then lend to this person. Q. Did you tell him that a man wanted to borrow money? A. No. If I said that, my father wouldn't have lent me the money. Q. So you told your father a lie? A. It doesn't mean that I lied to my father, but if I needed money for certain things, then that was what I said to him." 21 Whilst, as her Honour expressly recognized, the prosecution case could not be proved by the incredibility of the appellant's testimony, the rejection of it is significant in demonstrating why this ground of appeal should fail. The evidence pointed to as "reasonably consistent" with "innocence" is the appellant's version of events and as her Honour, the fact finding tribunal, held "the whole of her evidence lacked credibility". An argument based on facts which have been rejected does not constitute a reasonable alternative to a conclusion of guilt. 22 Her Honour's conclusion as to the guilt of the appellant was based upon her acceptance of the true import of the conversations between the appellant and Sang. It was submitted that "her Honour allowed her assessment of the credibility of the appellant to be infected" by opinion of Detective Sergeant Cadden that the appellant and Sang were using a code. This opinion is essentially the focus of the challenge on grounds 2 and 3 to which I will turn. I would reject the contention that her Honour's view was so infected. As she stated, she did not place great weight upon the appellant's demeanour. Her conclusion of the appellant's lack of credibility was illustrated by the inherent absence of sense in the exchanges unless, as contended by the Crown, it was intended to communicate something other than what was being said. The explanations offered by the appellant did nothing to alter the situation. If anything, they strengthened the conclusion that the conversationalists were engaged in deliberately obscuring the real topic of the exchanges. It is to be remembered that the appellant claimed Sang was an applicant to her for a loan and there would be no reason to mask their expressions if that were the case. The appellant's assertion that she refrained from direct reference in case someone overheard her was unsurprisingly rejected by the judge as the tribunal of fact. In a sense, the appellant's explanation offers a confirmation that the real topic of the conversations was being disguised, however, as her Honour found, even at face value the conversations did not bear the meaning of the appellant lending money to Sang. 23 On their faces, Sang and the appellant discussed haircuts, payment of bills, food, warehousing, going to see grandpa (or maternal grandpa) and, in what might be regarded as the extreme of absurdity given the appellant's version of the moneylending reason for the association between herself and Sang, the bulk supply of milk by the crate or half crate. 24 There was a vigorous debate at trial between the parties as to whether a Vietnamese word used in connection with milk was to be translated as "crate" or "box". The debate did not focus on a real issue. The use of "code" is not a word in this context inhering fixed rules. What is involved are two people with a common understanding of what is being communicated between them and the use of words to disguise the topic. This can be identified by a person having relevant experience of words being frequently used to convey some particular meaning. 25 Her Honour made no error such as is complained of in ground 1. 26 Ground 2: The evidence of Sergeant Cadden was based upon reading transcripts of translated telephone calls made in the Vietnamese language. He did not listen to the telephone calls. His evidence as to the existence of a code in the conversations should not have been admitted. 27 So far as the first complaint in this ground is concerned, it is to be noted that, while Detective Sergeant Cadden had some basic knowledge of the Vietnamese language, he did not claim fluency. It would have been futile for him to listen to the intercepts. Had he done so and proffered his opinion as to translation there would no doubt have been a sustainable objection that he was not appropriately qualified. 28 Both the Crown and the appellant called qualified interpreters. Her Honour found preference for the evidence of Mr Nguyen, who was called by the Crown. She gave reasons for this preference which included her appreciation of his attempt to translate the sense of the phrases used, rather than a literal word for word translation. She found the latter, which had been advanced by the interpreter called by the appellant as an approach which (when translated) "rather strained the language". The finding was clearly within the scope of her Honour's jurisdiction as a fact finder and no fault in her reasoning process has been demonstrated. 29 The thrust of the appellant's argument against the admission of Detective Sergeant Cadden's evidence was contained in ground 3. 30 Ground 3: Sergeant Cadden used conversations between Sang and other people, to which the appellant was not a party, to assist him in coming to the conclusion that some of the words spoken by the appellant were consistent with being a code used in illicit drug undertakings. This breaches the principle in Regina v Nguyen (2007) 173 A Crim R 557. This evidence should not have been admitted. 31 Nguyen was a case where there had been trial by jury and schedules of words used by Vietnamese drug dealers to refer to heroin and particular quantities of it had been put into evidence. The court, approving an earlier decision in R v David, unreported CCA 10 October 1995, held that an expert (with similar experience to that of Detective Sergeant Cadden) would be entitled to give evidence that words could be referring to the supply of heroin etc. but could not give evidence that the words in fact had that meaning. It was noted that one objection to evidence in the latter form would be that it was liable to influence a jury making their own minds. 32 The evidence of Detective Sergeant Cadden was given in terms of his experience as to the use of words commonly to describe various aspects of drug trafficking. He did not purport to assert absolutes. He also acknowledged that some of the expressions were new to him. Her Honour dealt with these issues and in her judgment and said: "Detective Cadden had considered all of the telephone calls which were tendered and said that he believed the parties were using coded terms for drugs and amounts of drugs. In particular, he said that the words 'old man' were commonly used as a reference to one block, 350 g of heroin and the words 'kids' and 'little kids' were often used to refer to ounces of heroin. He said that a common term for methylamphetamine, or ice, was the word 'glasses' or 'eyebrow'. There was no challenge to this evidence. There were three areas in which his opinion was challenged. In relation to the conversations in which the accused spoke of 'grandpa', Detective Cadden's opinion was that she was using a coded reference to heroin. While there was no challenge to Detective Cadden's evidence that the term 'old man' is commonly used as a coded reference to heroin, he expressed the opinion that when the accused and others and Sang in the intercepted calls used the word 'grandpa', or 'maternal grandpa', they too were codes for heroin. Detective Cadden said that he had not heard the word 'grandpa' used in reference to heroin before considering the conversations in this matter. He extrapolated this from his experience of the use of the words, 'old man'. However, he said that in coming to that conclusion, he took into account that in conversation between Sang and others, Sang used the words 'old man' and 'grandpa', as if they were interchangeable, which persuaded him that the word 'grandpa' was code for heroin. In call 7 Sang said, 'Anyway, we get it done and then take Grandpa and Grandma, the old men, you know'. Detective Cadden said that this cemented the association between the word 'Grandpa' and 'Old man' and firmed his opinion that it was code for heroin. The second area in which his opinion was challenged was the use by Sang in call 19 to the accused of the word 'foodstuff'. In that conversation between Sang and the accused, the accused first said to Sang, 'What time do you want to go and eat hotpot in Springvale?' There was then some conversation about Sang contacting a person or persons who had spoken to the accused. The accused suggested they go at about 7pm. Sang then said, 'No, can you come over here. Not home. Can you come and take me up there…to get the….foodstuff to make it even?' The accused said, 'Yeah.' Detective Cadden said that he had heard the words 'food' and 'eating' often used as code for the purchase of drugs. He had not heard the word 'foodstuff' as code for drugs used before. His opinion that Sang was talking about drugs was based on that experience and that he believed 'foodstuff' to be a logical extrapolation from 'food'. He also took into account that the conversation appeared to be guarded and because the accused had already spoken about hotpot, he saw no reason for Sang to be guarded. As to the guarded nature of the conversation, Detective Cadden based that on the form in which the transcript appeared. He does not speak Vietnamese and had not listened to the conversations as recorded. He said that where three dots appeared between words, he took that as reflecting a guarded or hesitant manner of speaking. Mr Nguyen, the translator who made these transcripts, said that when typing the transcripts, he inserted three dots to signify several things – when one party was speaking and the other party interjected he puts dots to show that the first party continued to speak after the interjection; when one party paused slightly between words, he inserted dots to signify that; if one person spoke at the same time as another, Mr Nguyen puts dots in the transcript to indicate that. It was not suggested to Detective Cadden that the three dots could have a meaning other than to reflect pauses. However, accepting Mr Nguyen's evidence that the insertion of three dots could mean a number of things, I do not propose to give weight to Detective Cadden's view that the pauses between the words in this conversation, and presumably others, reflected that the parties were speaking in a guarded way. In call 20, the accused rang Sang and asked, 'Was it a crate of milk that they want or half a crate?' Sang replied, 'One crate, I guess'. The accused said, 'Can you get onto them and then ring me?' Mr Nguyen translated the word 'crate' rather than some other container to give sense to that conversation. Ms Nguyen preferred the word 'box' which Mr Nguyen accepted. Detective Cadden said that he had not heard the word 'crate of milk' used as code for drugs although he believed he had heard the word 'crate' alone used as code. As to the word 'box', he said that it immediately registered as code to him because the weight of the drug ice is often referred to as 'a box'. He could not say whether this conversation was code for ice or not, because in another conversation, call 22, Sang said, 'It's going to be one box. One old man will taken away'. This caused Detective Cadden to consider whether the word 'box' was being used to refer to heroin rather than ice. He nonetheless maintained that it was code for drugs. It was suggested that the opinion of Detective Cadden should not be accepted where it is, in effect, an extrapolation from known code to other words. One imagines that the use of code by those engaged in the drug trade is not static and codes change from time to time. That an association was new to Detective Cadden does not cause me to discount it. In considering the evidence of Detective Cadden, it is important to bear in mind that sometimes ordinary words bear their ordinary meaning. On the basis of Detective Cadden's expertise, and on consideration of the content of the calls, I accept him that the words 'Grandpa', 'maternal Grandpa', 'foodstuff' and 'crate' or 'box of milk' are codes for heroin and supply of heroin. I accept this evidence even though he had not heard those particular variations of code before. The similarity and the context of their use in the conversations between Sang and others led him to the view that they were coded references to drugs. Based on my acceptance of his evidence concerning the use of codes, I am satisfied that Sang and the other people to whom he was speaking in the intercepted conversations were discussing him obtaining 'two old men', or two blocks of heroin." 33 No error of approach or of determination by her Honour has been shown. 34 The complaint first articulated in ground 3 is allied to the complaints in grounds 4 and 5. 35 Ground 4: Her Honour was in error in admitting the evidence of the contents of telephone calls intercepted between the man Sang and others to which the appellant was not a party. The evidence of these telephone conversations is hearsay evidence.