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Court of Criminal Appeal 22 August 2007

Nguyen v R

[2007] NSWCCA 249

Also reported as (2007) 173 A Crim R 557
Drugs
CRIMINAL LAW DRUGS

Citation: Nguyen v R [2007] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 22 August 2007
Judge(s): Spigelman CJ, James J, Hislop J

Background

The appellant was tried in the District Court on two counts: supplying not less than a large commercial quantity of heroin, and conspiring to import not less than a trafficable quantity of cocaine. The prosecution case on the heroin count rested heavily on approximately seventy intercepted telephone conversations conducted in Vietnamese, which the Crown alleged were coded references to drug transactions.

A detective sergeant who was a native Vietnamese speaker and experienced drug investigator gave opinion evidence interpreting the coded language in those conversations. He also prepared schedules translating Vietnamese terms allegedly used by drug dealers to refer to specific quantities of heroin and to money. The appellant accepted that the conversations were coded and that many referred to drug transactions, but contested that they related to heroin or to the quantities the Crown alleged.

The jury acquitted the appellant of the larger charge (supplying not less than a large commercial quantity, being one kilogram or more) but convicted him of the lesser alternative (supplying not less than a commercial quantity, being 250 grams or more). He was also convicted on the cocaine conspiracy count. The appeal to the Court of Criminal Appeal was confined to the heroin supply conviction.

  • Whether the trial judge erred in admitting the detective sergeant's opinion evidence about what coded words and expressions in the intercepted conversations "really meant"
  • Whether the trial judge erred in admitting the opinion evidence in the form of drug code tables (the schedules prepared by the detective sergeant)
  • Whether the trial judge erred by failing to direct the jury on how to approach the opinion evidence
  • Whether the trial judge erred by failing to warn the jury about caution required when evaluating evidence across separate counts

Decision

The Court allowed the appeal on the first count. James J (with whom Spigelman CJ and Hislop J agreed) found that the trial judge had erred in the admission and treatment of the detective sergeant's opinion evidence. The core problem was the scope of what that opinion evidence was permitted to cover.

The Court accepted that a witness with the detective sergeant's qualifications and experience could legitimately give evidence that drug dealers commonly speak in coded language, and that particular words or expressions commonly used by drug dealers appeared in the intercepted conversations and could be references to drugs. That kind of contextual, code-recognition evidence was within the proper bounds of expert opinion.

However, the detective sergeant went further than this. He gave opinions about the specific drug being discussed in particular conversations (nominating heroin as opposed to other drugs) and about the specific quantities of heroin involved. The Court found this exceeded what the evidence properly supported, and that the manner in which the evidence was received and the directions given to the jury did not adequately safeguard against the risk that the jury treated these over-reaching opinions as established fact.

On the sentencing consequences, the Court observed that the quashing of the conviction on the first count made consequential adjustment to sentences appropriate, even in the absence of a formal sentence appeal, in order to reflect the changed position and to avoid uncertainty pending any retrial.

Orders Made

  • Appeal against conviction on the first count allowed
  • Verdict of guilty on the first count quashed
  • New trial of the first count ordered
  • Sentence on the second count quashed and the appellant re-sentenced on that count to imprisonment for 12 years commencing 14 October 2003, with a non-parole period of 8 years from 14 October 2003 to 13 October 2011
  • Those further sentencing orders stayed for 14 days from the date of judgment or until further order

Key Takeaways

  • A police officer with specialist experience in drug investigations can properly give opinion evidence that coded language was used in intercepted conversations and that particular words or expressions are commonly used by drug dealers to refer to drugs.
  • The permissible scope of such expert opinion has limits: giving opinions about which specific drug was being discussed, or nominating precise quantities involved in particular conversations, risks straying beyond what the expertise properly supports and into impermissible ultimate fact-finding.
  • Where expert opinion evidence is admitted in a criminal trial, trial judges must give adequate directions to the jury on how that evidence is to be approached, particularly where it involves the interpretation of coded language central to the Crown case.
  • The Court of Criminal Appeal confirmed it can make consequential sentencing adjustments following the quashing of one conviction, even where no formal appeal against sentence has been brought, to avoid sentencing uncertainty pending a retrial.
  • Insufficient jury directions regarding the limitations of expert code evidence, combined with opinion evidence that overreached its proper foundation, provided grounds to quash a conviction and order a new trial.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act
- Drug Misuse and Trafficking Act
- Evidence Act

Cases:
- Keller v R [2006] NSWCCA 204
- Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
- 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