Citation: R v Tan Phuong LE (No 2) [2010] NSWDC 21
Court: District Court of New South Wales
Date: 25 February 2010
Judge(s): Berman SC DCJ
Background
The accused faced charges relating to the importation of methylamphetamine. Customs and police officers had found a substantial quantity of the drug concealed inside three suitcases. The Crown alleged the accused was part of a common purpose with another person, Loc Phuoc Trieu, to import and distribute the drugs in Australia.
During the trial, the Crown sought to tender a translated Vietnamese document containing a representation made by Loc Phuoc Trieu. The defence objected to its admission.
Legal Issues
- Whether the translated document was admissible as a representation made in furtherance of a common purpose under s 87(1)(c) of the Evidence Act 1995 (NSW)
- Whether the document should nonetheless be excluded under s 135 or s 137 of the Evidence Act on the ground of unfair prejudice
- Whether any use of the document should be limited, particularly the reference to the accused as the "owner" of the goods
Decision
The court found sufficient evidence, even at that early stage of the trial, to establish that the accused was part of a common purpose to import methylamphetamine. The court relied on telephone intercepts tendered as Exhibit 5, which identified a person called "Phuong" as the accused, supported further by voice comparison evidence. The court noted it could make that finding to a standard higher than the threshold required at that point.
The court was also satisfied that Loc Phuoc Trieu was part of the same common purpose. He was mentioned in the telephone intercepts, and the address he wrote on the document appeared in at least one of those calls.
The representation was found to have been made in furtherance of the common purpose. Although the drugs were already physically in Australia when the representation was made, the common purpose extended to having them cleared through customs and delivered for distribution or on-sale. The representation was part of that process, and so fell within s 87(1)(c).
The court rejected the s 135 and s 137 arguments, finding no risk of unfair prejudice. The document made the Crown's case stronger, but that alone does not constitute unfair prejudice.
Orders Made
- The translated document was admitted into evidence.
- The jury was directed that the reference to the accused as the "owner" of the goods could not be used to prove the truth of that statement.
Key Takeaways
- Under s 87(1)(c) of the Evidence Act 1995, a representation made by a co-participant is admissible against an accused where the court is satisfied the representation was made in furtherance of a common purpose shared with the accused.
- A common purpose does not end once the drugs arrive in Australia. The District Court found the purpose extended to clearing customs and distributing the drugs, meaning representations made after physical arrival could still be "in furtherance" of that purpose.
- Strengthening the Crown's case is not, without more, a basis for excluding evidence under s 135 or s 137. Unfair prejudice requires something beyond the evidence simply being probative.
- Where a co-participant's representation contains a specific assertion about the accused (here, that the accused was the "owner" of the goods), a limiting direction restricting the jury from using that assertion for its truth may be appropriate, even when the broader document is admitted.
- Voice comparison evidence, combined with self-identification by the speaker in intercepted calls, provided sufficient basis to connect the accused to the intercepted conversations.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 87(1)(c), 135, 137
Cases cited: None cited in the judgment.