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Court of Criminal Appeal 22 August 2000

Regina v Phuong Van Nguyen

[2000] NSWCCA 285

Drugs
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST CONVICTION AND SENTENCE IDENTIFICATION

Citation: Regina v Phuong Van Nguyen [2000] NSWCCA 285
Court: NSW Court of Criminal Appeal
Date: 22 August 2000
Judge(s): Beazley JA, Greg James J, Kirby J (all agreeing in the reasons of Kirby J)

Background

The appellant was charged alongside his brother-in-law with supplying heroin at premises in St Peters on 23 September 1998. Police executed a search warrant and found heroin hidden in a concealed drain beneath the kitchen sink and beneath pebbles at the rear of the property. Drug supply paraphernalia was also found throughout the house. The appellant had leased the premises three weeks before the search.

The Crown's case rested on proving joint possession of the heroin. A key witness, Mr Yenney, had purchased heroin from the premises on multiple occasions in the two weeks prior to the search. He gave evidence that the appellant was present on three of those occasions, and that on one occasion he handed the appellant money in exchange for drugs.

Mr Yenney's identification of the appellant was made almost a year after the events, using a video of photographs shown by police at a station. His identification of the appellant was notably less certain than his identification of the co-accused. Both accused had declined to participate in an identification parade. The appellant was convicted at trial by jury in the District Court and appealed against both conviction and sentence.

  • Whether the trial judge gave an adequate warning to the jury about the dangers of relying on identification evidence, as required by the Evidence Act 1995
  • Whether any error in the identification direction was sufficient to constitute a substantial miscarriage of justice
  • Whether the proviso under s 6(1) of the Criminal Appeal Act 1912 applied, such that the conviction should be upheld despite any error (that is, whether a properly instructed jury would inevitably have convicted)

Decision

Kirby J (with whom Beazley JA and Greg James J agreed) found that the trial judge's direction on identification evidence was inadequate. The Evidence Act 1995 (ss 116 and 165) required the jury to receive a specific warning about the unreliability of identification evidence. While the trial judge gave some direction on the topic, it fell short of the standard required. In particular, it did not adequately direct the jury on the circumstances relevant to Mr Yenney's belated and qualified identification of the appellant, including the significant gap between the events and the identification, and the hesitant nature of that identification.

On the question of the proviso, Kirby J acknowledged the Crown case was strong. The premises had been leased by the appellant, heroin was found concealed in an elaborate system consistent with ongoing supply, multiple witnesses had purchased heroin there, and the appellant's explanation for the presence of balloons at the premises was characterised as fanciful. However, the court held that a conviction was not certain, only highly likely, and that the appellant may have lost a chance of acquittal that was fairly open to him.

Kirby J declined to apply the proviso. Although noting that in a retrial the Crown could potentially tender the appellant's evidence and seek a consciousness of guilt direction based on his implausible account, the court held it was not appropriate to consider the likely outcome of any new trial when determining whether a substantial miscarriage of justice had occurred in the current trial.

Orders Made

  • Appeal allowed
  • Conviction and sentence of Phuong Van Nguyen quashed
  • New trial ordered

Key Takeaways

  • Under ss 116 and 165 of the Evidence Act 1995, a trial judge must give the jury a clear and specific warning about the dangers of relying on identification evidence, particularly where that identification was made under circumstances reducing its reliability, such as a lengthy delay or equivocal recognition.
  • A strong Crown case does not automatically attract the proviso under s 6(1) of the Criminal Appeal Act 1912. The proviso requires the appellate court to be satisfied that any properly instructed jury would certainly have convicted, not merely that conviction was highly probable.
  • Where an accused may have lost a fairly open chance of acquittal due to a misdirection, a substantial miscarriage of justice is established and the proviso cannot be applied.
  • The likely outcome of any retrial, including directions that might be available in fresh proceedings, is not a permissible consideration when assessing whether a substantial miscarriage of justice occurred at the original trial.
  • Hesitant or qualified identification evidence, made well after the relevant events and without prior photographic identification procedures, carries particular risk of unreliability and demands careful judicial direction.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29(1)
- Evidence Act 1995 (NSW), ss 116(1)(a) and (b), 165(1)(b), 165(2)(a), (b) and (c)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- R v Firman (1989) 52 SASR 391
- Kelleher v The Queen (1974) 131 CLR 534
- Mraz v The Queen (1955) 93 CLR 493
- R v Edwards (1993) 178 CLR 193
- Zoneff v The Queen [2000] HCA 28
- R v De-Cressac (1985) 1 NSWLR 381