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Court of Criminal Appeal 25 June 2015

Dang v R; Tran v R

[2015] NSWCCA 163

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION ACCUSED CIRCUMSTANTIAL EVIDENCE CASE LEAVE TO APPEAL GRANTED APPEAL AGAINST CONVICTION

Citation: Dang v R; Tran v R [2015] NSWCCA 163
Court: Court of Criminal Appeal, New South Wales
Date: 25 June 2015
Judge(s): R A Hulme J at [1]; Davies J at [155]; Bellew J at [163]

Background

Two co-accused were convicted by a jury in 2013 of attempting to possess a marketable quantity of heroin, a border controlled drug that had been unlawfully imported into Australia from Hong Kong. The heroin (822.3 grams of pure drug concealed inside table tennis bats) was intercepted by Australian Customs and passed to the AFP, who substituted flour for the heroin and inserted a listening device before arranging a controlled delivery to a residential address in Strathfield.

The co-accused were arrested on a footpath diagonally opposite the delivery address shortly after 3.00pm on 16 May 2012. The Crown's case was that they had attended to collect the drugs. One appellant discarded a SIM card immediately before arrest. Both were found carrying multiple mobile phones, and nearly $150,000 in cash was found at one appellant's home.

The Crown's case rested entirely on circumstantial evidence: telephone records showing frequent contact between the co-accused, contact between one appellant and the principal recipient of the consignment, travel records connecting participants to Hong Kong, and the physical presence of the co-accused at the scene at the time of a prearranged collection.

  • Whether the jury's verdicts of guilty were unreasonable or unsupported by the evidence (raised by both appellants)
  • Whether the trial judge erred by admitting, against one appellant (Dang), evidence of the other appellant's (Tran's) trip to Hong Kong and cash found at Tran's home
  • Whether the trial judge erred by refusing to order a separate trial for Dang
  • Whether the sentences imposed were affected by error, including in the assessment of each appellant's intended share of the consignment and their relative culpability
  • Whether the sentence imposed on one appellant was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal on all grounds but dismissed every appeal. On the unreasonableness ground, the Court found that the circumstantial evidence, taken as a whole, properly supported the jury's verdicts. The appellants' account of their presence at the scene was implausible, and the combination of telephone records, physical attendance, and other corroborating material provided a sufficient basis for the jury's conclusions.

On the evidentiary and severance grounds raised by Dang, the Court found no error in the trial judge's ruling. The evidence concerning Tran's Hong Kong visit and the cash found at his home was admissible, and the trial judge's refusal to order a separate trial was not an error of law. The Court was satisfied that the evidence was relevant and that any prejudice to Dang did not warrant severing the indictment.

On sentence, the Court rejected the contention that the sentencing judge erred in finding that both appellants intended to take possession of the entire consignment. The Court also found no error in the assessment of each appellant's relative culpability or in the conclusion that Tran was more culpable than Dang. The disparity in their sentences did not create a justifiable sense of grievance for either party.

On the question of manifest excess, the Court noted that the consignment contained more than 400 times the marketable quantity of heroin, that both appellants were motivated by profit, and that the sentences imposed fell comfortably within the proper sentencing discretion given the 25-year maximum penalty. The submission that the quantity was below levels regularly encountered by the courts was rejected as too general to carry weight.

Orders Made

For both appellants, in respect of the applications for leave to appeal against sentence:

  • Leave to appeal granted
  • Appeal dismissed

(Conviction appeals were also dismissed.)

Key Takeaways

  • In dismissing the conviction appeals, the Court of Criminal Appeal confirmed that a circumstantial case can sustain a verdict where the accused's competing account is implausible and multiple categories of evidence converge on guilt.
  • Co-accused evidence regarding one defendant's travel and possession of cash was held admissible against a co-accused where it was relevant to the Crown's overall case, and did not automatically warrant a separate trial.
  • A sentencing court may properly find that an accused intended to possess an entire drug consignment even where the accused was arrested before taking physical delivery, provided the evidence supports that inference.
  • Disparity between sentences imposed on co-offenders does not constitute error where the difference reflects a proper assessment of relative culpability.
  • Under the Commonwealth Criminal Code, where a drug consignment contains several hundred times the marketable quantity, the quantity is a weighty sentencing factor; broad assertions that the quantity is unremarkable without specific comparative evidence carry little force.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Code (Cth), ss 11.1(1) (attempt), 307.6(1) (possession of border controlled drug)

Cases:
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Gilham v R [2012] NSWCCA 131
- Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
- Sinkovich v R [2011] NSWCCA 90
- Wong v R [2001] HCA 64; 207 CLR 584