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Court of Criminal Appeal 13 February 2004

REGINA v NGUYEN

[2004] NSWCCA 16

Drugs
CONVICTION APPEAL ACCUSED CIRCUMSTANTIAL EVIDENCE ACQUITTAL ENTERED

Citation: Regina v Nguyen [2004] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 13 February 2004
Judge(s): Giles JA, Hulme J, Adams J

Background

The appellant was convicted in the District Court of deemed supply of a commercial quantity of heroin (350.5 grams) under s 25(2) of the Drugs Misuse and Trafficking Act 1985. The charge was framed as a joint offence with a co-accused, who was physically driving a van when police intercepted it on the F3 Freeway near Cooranbong late at night. The heroin was found inside a video case in the van.

The Crown's case rested entirely on circumstantial evidence. The appellant had flown to Sydney from Brisbane shortly before the interception, and the Crown alleged he had procured the heroin in Cabramatta and was using his co-accused to transport it back to Brisbane by road. The Crown argued the appellant jointly possessed the heroin because his agreement with the co-accused gave him control over it, even though he had no physical custody of it at the relevant time.

Key pieces of circumstantial evidence included: the appellant's fingerprint found inside the video case, telephone contact between the appellant's mobile phone and the co-accused's phone, the appellant's possession of substantial cash, a piece of paper listing names and monetary amounts, and the general movements of the appellant while in Sydney.

  • Whether the circumstantial evidence was capable of establishing, beyond reasonable doubt, that the appellant was in joint possession of the heroin found in the co-accused's vehicle.
  • Whether the jury's verdict of guilty was unreasonable or unsupported by the evidence, applying the test in M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439.
  • Whether an acquittal should be substituted rather than a retrial ordered.

Decision

The Court of Criminal Appeal held unanimously that the prosecution case fell far short of establishing beyond reasonable doubt that the appellant was in joint possession of the heroin. While the circumstantial evidence could reasonably found a suspicion that the appellant's trip to Sydney was drug-related, suspicion alone cannot sustain a conviction. The critical inferential step required by the Crown, from general drug-related suspicion to joint possession of that specific video case of heroin, was not available on the evidence.

Giles JA observed that even setting aside the appellant's own evidence entirely, the gap between general suspicion and proof of joint possession of the particular heroin was one the jury simply could not bridge on the material before it. Adams J, whose reasons the other judges adopted, concluded there was no evidence fit to go to the jury that the heroin was in the appellant's possession, nor that the appellant was engaged in any arrangement with the co-accused to supply the particular heroin found in the van.

Adams J applied the test from M v The Queen, which requires the appellate court to set aside a verdict where the evidence contains such inadequacies or lacks sufficient probative force that there is a significant possibility an innocent person has been convicted. The Court found the prosecution evidence here did not meet the threshold required for the charge, and that substituting an acquittal was the appropriate remedy.

The Court also noted a difficulty with the trial judge's jury directions. Her Honour did not clearly specify, for the jury's assistance, the precise basis on which the Crown alleged joint possession existed, and an analogy offered about joint ownership of a television set was apt to confuse rather than clarify.

Orders Made

  • Appeal allowed.
  • Conviction quashed.
  • Verdict of acquittal substituted.

Key Takeaways

  • A conviction for joint possession in drug supply cases requires evidence capable of proving, beyond reasonable doubt, that the accused had an arrangement giving him actual control over the specific drugs in question, not merely a general drug-related association with a co-accused who had physical custody.
  • Circumstantial evidence that grounds suspicion of drug involvement is not, without more, sufficient to establish joint possession of a particular quantity of drugs intercepted in another person's vehicle.
  • The Court of Criminal Appeal confirmed that under the M v The Queen test, a verdict must be set aside where the evidence lacks sufficient probative force such that there is a significant possibility an innocent person has been convicted.
  • Where the prosecution case for joint possession rested on inferences from telephone contact, fingerprint evidence on the container, cash holdings, and travel patterns, those facts did not, in combination, close the inferential gap required to prove the specific element of possession.
  • In allowing the appeal, the Court substituted an acquittal rather than ordering a retrial, having concluded no jury properly directed could find the charge proved on the evidence presented.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Fleming v The Queen [1998] HCA 68; (1998) 73 ALJR 1