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Court of Criminal Appeal 29 April 2015

Nguyen v R

[2015] NSWCCA 78

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION CRIMINAL LAW PROBATIVE VALUE OF LIES OF THE ACCUSED

Citation: Nguyen v R [2015] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 29 April 2015
Judges: Beazley P; RA Hulme J; Adamson J

Background

The appellant was convicted by a jury of one count of supplying not less than a commercial quantity of heroin, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). She was tried alongside her former de facto husband, who had been driving a vehicle in which police stopped both occupants. Heroin weighing 352.2 grams was found in a chip bag on the floor of the front passenger side, where the appellant was seated.

The Crown case proceeded on a theory of deemed supply under s 29 of the Act, alleging that the appellant and her co-accused were engaged in a joint criminal enterprise to supply the drug. The Crown relied on intercepted telephone calls between the co-accused and a third party, physical surveillance evidence of meetings between that third party and both accused, and inconsistencies in the appellant's statements to police after arrest.

The appellant denied any knowledge that the chip bag contained heroin. She said she first noticed the bag when it knocked against her leg during the drive, and that she saw what appeared to be chips through the clear window of the packaging.

  • Whether the trial judge erred by failing to direct the jury that the Crown must prove the appellant knew the drug involved was of a commercial quantity, as an essential element of the offence under s 25(2) of the Act.
  • Whether the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied to prevent the conviction being set aside despite the misdirection.
  • Whether an alternative verdict should be entered pursuant to s 7(2) of the Criminal Appeal Act 1912.
  • Whether the verdict was unreasonable or could not be supported having regard to the evidence.

Decision

Failure to direct on an essential element

The Court held that knowledge of a commercial quantity is an essential element of the offence under s 25(2). A failure to direct the jury properly on an essential element is likely to constitute a miscarriage of justice, and the Court granted leave to appeal on this ground. There was no evidence specifically implicating the appellant in knowledge of the quantity of the drugs, meaning the Court could not be satisfied that a properly directed jury would inevitably have convicted her. Accordingly, the proviso to s 6(1) of the Criminal Appeal Act was not applied.

The Court also considered whether to enter a substituted verdict under s 7(2) of the Criminal Appeal Act, noting that such a course requires that the jury's satisfaction with the underlying facts be unaffected by the misdirection. However, the Court found it unnecessary to resolve that question definitively given its conclusion on the second ground of appeal.

Unreasonable verdict

The Court concluded that the evidence was insufficient for the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The Crown's case rested entirely on circumstantial evidence, and the Court found that the circumstances were not inconsistent with a rational hypothesis other than guilt.

Probative value of lies

The Court addressed the weight given to the appellant's inconsistent statements to police. Applying established principles, lies or inconsistencies are only probative of guilt where they are explicable solely on the basis that the truth would be consistent only with commission of the offence charged. Here, the appellant's inconsistencies were explicable on the basis that she knew her co-accused and the third party were involved in a drug transaction, without her own participation in that transaction. The inconsistencies therefore could not bear the weight the Crown placed on them.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Appellant's conviction quashed and a verdict of acquittal entered.
  • Appellant to be released forthwith.

Key Takeaways

  • Knowledge that the drug involved is of a commercial quantity is an essential element of an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and a jury must be properly directed on that element.
  • Where a trial judge fails to direct the jury on an essential element, the proviso under s 6(1) of the Criminal Appeal Act 1912 will not be applied unless the evidence was sufficient to establish that a properly directed jury would inevitably have convicted the accused.
  • Under the principles in Edwards v R and related authorities, lies or inconsistencies by an accused are only probative of guilt where the only rational explanation for the falsehood is that the truth would implicate the accused in the offence charged. Inconsistencies consistent with a lesser degree of involvement do not meet that threshold.
  • In dismissing the Crown's circumstantial case, the Court of Criminal Appeal confirmed that a conviction cannot stand where the circumstances are consistent with a rational hypothesis other than guilt.
  • The question of when an alternative verdict may be entered under s 7(2) of the Criminal Appeal Act requires that the jury's underlying factual findings be unaffected by the misdirection, though the Court left the precise application of that principle to be resolved in an appropriate future case.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 29, Sch 1
- Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2)

Cases
- Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92
- Doggett v The Queen [2001] HCA 46; 208 CLR 343
- Eade v The King (1924) 34 CLR 154
- Edwards v R [1993] HCA 63; 178 CLR 193
- Ka Chung Fung v R [2007] NSWCCA 250; 174 A Crim R 169
- M v The Queen [1994] HCA 63; 181 CLR 487
- Mehajer v R [2014] NSWCCA 167
- MFA v R [2002] HCA 53; 213 CLR 606
- Peacock v R [1911] HCA 66; 13 CLR 619
- Pemble v R [1971] HCA 20; 124 CLR 107
- R v Gulliford [2004] NSWCCA 338; 148 A Crim R 558
- R v Heyde (1990) 20 NSWLR 234
- R v Lau (1998) 105 A Crim R 167
- R v Micalizzi [2004] NSWCCA 406
- R v Moussa [2001] NSWCCA 427; 125 A Crim R 505
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Zoneff v The Queen [2000] HCA 28; 200 CLR 234