Citation: Chi Thanh Cao v R [2006] NSWCCA 89
Court: NSW Court of Criminal Appeal
Date: 30 March 2006
Judge(s): Spigelman CJ, Barr J, Howie J
Background
The appellant was convicted in the District Court of attempting to possess prohibited imports under s 233B of the Customs Act 1901, specifically a commercial quantity of heroin. The heroin had been concealed in cartons of frozen fish paste within a seafood shipment from Cambodia, which arrived in Sydney in March 2003.
Under instructions from the appellant, the container was delivered to a cold storage facility. Despite a quarantine embargo on the cartons, the appellant loaded several of the marked cartons into his van and drove away, engaging in conduct that police surveillance recorded as consistent with a drug transaction. When stopped, police found three of the marked cartons in his van. In a subsequent recorded interview, the appellant admitted he had been specifically told to look for cartons with red markings and bring them to a restaurant operator known to him as "Simon."
The sole issue at trial was whether the Crown had proved beyond reasonable doubt that the appellant knew, or believed it likely, that the marked cartons contained heroin. The defence case was that the appellant was Simon's unwitting dupe, merely suspicious but not knowingly involved with drugs.
Legal Issues
- Whether the trial judge erred by failing to direct the jury that no adverse inference could be drawn from two specific answers given by the appellant during his police interview (Questions 164 and 165).
- Whether the trial judge's directions on the mental element required for the offence were inadequate, specifically whether the summing-up improperly collapsed the inference from a belief in the likelihood of drugs into proof of an intention to possess, thereby withdrawing a critical issue from the jury.
Decision
On the first ground, the Court found that any failure to give a direction under s 89 of the Evidence Act 1995 (which limits adverse inferences from silence during official questioning) did not cause a substantial miscarriage of justice. The Court applied the proviso under rule 4 of the Criminal Appeal Rules, satisfied that the overall direction on the police interview, combined with the weight of the Crown's case, meant no real injustice flowed from the omission.
On the second and more substantive ground, Howie J (with whom Spigelman CJ and Barr J agreed) acknowledged that the trial judge's summing-up did not separately address each inferential step from proof of a belief in the likelihood of drugs through to proof of an intention to possess them. However, the Court held this was not a fatal error on the particular facts. Where the only issue was whether the appellant held the requisite belief, and where no separate factual dispute existed about the consequence of that belief for his intent, the directions adequately communicated the real issue to the jury.
The Court emphasised that trial judges should not routinely shortcut the chain of inferential reasoning. There will be cases where doing so effectively withdraws a critical issue from the jury and constitutes a fundamental flaw, but this case was not one of them. The jury were properly directed on the onus of proof, the standard of proof, the insufficiency of mere suspicion, and the need to acquit if the appellant might have been a dupe.
Howie J also found the Crown case overwhelming and was satisfied, independently, that the evidence proved guilt beyond reasonable doubt, reinforcing the decision to dismiss the appeal.
Orders Made
- The appeal against conviction is dismissed.
Key Takeaways
- A conviction for attempting to possess narcotic goods requires proof that the accused believed it was likely that the goods contained drugs, and that the accused intended to take possession of those drugs. Mere suspicion is not sufficient.
- The Court of Criminal Appeal confirmed that trial judges should, as a matter of good practice, take juries through each inferential step from a finding of belief about the existence of drugs to a finding of intent to possess them, rather than compressing those steps.
- In dismissing the appeal, the Court held that a shortcut in jury directions will only amount to a fundamental flaw where it effectively withdraws a live factual issue from the jury's consideration. Where no genuine separate dispute existed about the consequence of the critical belief, the compressed direction caused no miscarriage of justice.
- No adverse inference direction under s 89 of the Evidence Act 1995 is automatically required in every case involving police questioning. The failure to give such a direction will not warrant a successful appeal unless it produces a substantial miscarriage of justice on the facts.
- Sufficient evidence of guilt, independently assessed by the appellate court under the principle in Weiss v The Queen, can reinforce a decision to dismiss a conviction appeal even where a direction was imperfect.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 233B
- Evidence Act 1995 (NSW), s 89
- Criminal Appeal Rules, rule 4
- Criminal Code (Cth), ss 3.1, 4.1(1), 4.1(2), 5.2, 5.6(1), 11.1
- Drug Misuse and Trafficking Act 1985 (NSW)
- Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 71, 71AA
Cases cited:
- Weiss v The Queen (2005) 80 ALJR 444
- Krakouer v The Queen (1998) 194 CLR 202
- Kural v The Queen (1987) 162 CLR 502
- Pereira v DPP (1988) 63 ALJR 1
- Saad v The Queen (1987) 61 ALJR 243
- Holland v The Queen (1993) 117 ALR 193
- R v Reeves (1992) 29 NSWLR 109
- R v Skaf (2004) 60 NSWLR 86
- R v Saengsai-Or (2004) 61 NSWLR 135
- DPP Reference No. 1 of 2004; R v Nguyen (2005) 154 A Crim R 360
- R v Veraga [2001] NSWCCA 24
- R v Muradian [2002] NSWCCA 371
- R v Lau (1998) 105 A Crim R 167
- R v Karam (1998) 105 A Crim R 167
- R v Ruiz-Avila [2003] NSWCCA 264
- R v Greatorex (1995) 83 A Crim R 416
- R v Guliford (2004) 148 A Crim R 558