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[2011] VSCA 42
Court of Appeal (Vic)
2011-02-24
Mr P, Hansen JA, Bongiorno JA, Harper JA
Original judgment source is linked above.
51 As to ground 1(i), the 'illustration' referred to was an example given by the judge of a lie told in consciousness of guilt. Shortly after commencing his directions to the jury on that aspect of the case, the judge posed an example of a boy called John who steals a comic book from a newsstand on his way home from school, and when his mother sees him reading the new comic in the lounge-room and says 'John, you've got a new comic', John responds by saying 'I didn't steal it'. The judge said that from John's conduct:
... you could draw an inference that he is conscious of the fact that he did steal it. He has not made an admission, he has made a complete denial. He has told a lie but it is the circumstances of the lie that enabled the jury to conclude he was conscious of his own guilt in stealing the comic.
52 Counsel for Nguyen submitted that the example was inapt as the reasoning was circular and likely to mislead the jury. He submitted that the statement 'I didn't steal the comic' could only be used in the way suggested by the judge if the jury first found that the statement was a lie. But the jury could only find that the statement was a lie if they first concluded that John did steal the comic. Thus, use of the lie depended on presupposing guilt. Counsel submitted that in the present case, the judge's example gave rise to a risk that the jury would reason that if Nguyen told relevant lies, it automatically followed that he was guilty. By reasoning directly to guilt, the risk was that the jury disregarded the intermediate steps required when using lies as consciousness of guilt.
53 I agree that the example was inapt. It was effectively a boot-straps argument. However, when viewed in the context of the charge as a whole, there was no risk that the example would have led the jury to reason improperly. Immediately after giving the example, the judge gave the jury extensive directions as to how the Crown sought to rely on alleged lies by Le, Nguyen (and the other co-accused) as evidencing consciousness of guilt. In essence, the alleged lies of Nguyen were (a) his claim to police that he did not know Le, had not been in contact with her, and had not attended at the safe-house the previous day, and (b) his claim to police that a key found on him was for an old lock he had replaced, where the evidence showed that the key actually opened the door of the safe-house. That is to say, the lies were not direct denials of committing the crime (as in the stolen comic example) but rather lies told to distance himself from a person and location central to the crime. In those circumstances, the impermissible reasoning process inherent in the judge's example could not be readily transferred to the actual case before the jury. In that sense, the example was unhelpful as the jury would have appreciated. Counsel for the respondent submitted that if the jury did adopt the example, in the sense that they thought they could only use Nguyen's lies if they were a direct denial of the crime (as opposed to lies distancing himself from Le and the safe-house), there was no relevant denial which the jury could have used against Nguyen, thus any erroneous reasoning engendered by the example could not have harmed Nguyen's defence. That may be so, but in my view the point does not arise because the judge's clear directions as to how the alleged lies could be used eliminated any confusion that might otherwise have been caused by the stolen comic example.
54 In short, the judge instructed the jury that they could only use the alleged lies if satisfied that the accused told deliberate lies relating to some significant circumstance or event connected with the crime and the only reasonable explanation for telling such lies was because he or she believed he or she had committed the crime and would be implicated in the crime if he or she told the truth. Further, the judge warned the jury that finding that an accused lied because he believed that the truth would implicate him in a crime 'is not the same as finding that an accused is guilty of committing the crime', and 'does not mean that you must necessarily find them to be guilty of that crime' (emphasis added). The judge explained that:
It may be, for example, that he or she is mistaken about having committed the crime or the extent of the crime, and in this case I will come to Cuong Le in a moment, but the Crown say Cuong Le told some lies in the records of interview and I will identify them, and the Crown say they go to consciousness of guilt. Consciousness of guilt of what? Consciousness of guilt of heroin trafficking simpliciter? Consciousness of guilt of heroin trafficking on a commercial level or consciousness of guilt of trafficking in a large commercial level? It may well be that it would be simply impossible for you to be satisfied that it went to a particular level of trafficking as distinct from being involved in trafficking. (emphasis added)
55 The directions, read as a whole, made it clear to the jury that they were not entitled to reason that Nguyen's lies, if established, led automatically to the conclusion that he was guilty of trafficking a large commercial quantity of heroin. Importantly, no exception was taken to the charge and counsel on the appeal made no complaint about any misdirection, save for the stolen comic example. Ground 1(i) is not made out.
56 As to ground 1(ii), counsel for Nguyen did not rely on this ground in his submissions. In effect the ground was abandoned. That was the proper course to adopt because, notwithstanding the reference to Le in the above passage, it is clear that the judge's direction about the use of lies in relation to particular levels of trafficking was applicable to both Le and Nguyen, and the jury would have understood it as such.
57 As to ground 2, counsel submitted that the judge erred by not specifically instructing the jury that Le's counsel's admission (that Le was trafficking heroin) was not admissible against Nguyen in circumstances where Le and Nguyen were jointly charged on the same count. There is no substance in this ground. The judge instructed the jury that although Le and Nguyen were jointly charged, they must consider the case against each accused separately. The judge told the jury, in substance, that if they were satisfied that there was an agreement between Le and Nguyen to deal heroin, then words and actions of both parties (but only words and actions in furtherance of and within the scope of such agreement) were cross-admissible. He explained that their records of interview were not cross-admissible. A little later, the judge instructed the jury that Le's counsel's concession that Le was dealing in heroin was:
... only relevant in the case against her. It is not a relevant admission - he [Le's counsel] is not making any admissions on behalf of the other accused and you need to be satisfied beyond reasonable doubt from the evidence as I have outlined it of that fact separately and independently of any admission that might have been made. That does not count in the case of the others.
Further, when directing on the law as to conducting a business of trafficking, the judge said:
So far as Cuong Le is concerned, that is not disputed; it is the extent of that business and trade that is disputed. As far as everyone else is concerned it is disputed that they were involved in the business or trade on a continuous basis, as I have defined it, of dealing heroin.
58 No exception was taken to these directions, nor could it have been as they were plainly correct. The jury would have understood that Le's admission of trafficking heroin was not to be used against Nguyen. Ground 2 is not made out.
59 For these reasons I would refuse Nguyen's application for leave to appeal against conviction.
60 Nguyen was aged 78 at the time of offending, 81 at the time of sentence, and is now aged 83. The judge described his personal circumstances as follows:
62 It is convenient to begin with ground 3. The assertion contained therein is patently wrong. The judge's 'great difficulty' with Dr Walton's report related to the statement that Nguyen was regarded as 'one of the lesser players'. As the judge correctly stated in his sentencing remarks, the statement was incorrect as Nguyen was an integral and important part of Le's business and had been convicted of trafficking in a large commercial quantity of heroin. Far from denying Nguyen procedural fairness, the judge raised the difficulty with counsel immediately following the tender of Dr Walton's report, saying that he regarded it as 'incredible that Dr Walton suddenly was able to say that your client was a minor player'. Counsel replied 'that's perhaps not something your Honour would agree with and so I would ask you to disregard his comments'. That was an entirely appropriate course adopted by trial counsel, recognising as she did the reality that Dr Walton's opinion as to the level of Nguyen's involvement was erroneous and, in any event, irrelevant as it was a matter for the judge.
63 Notwithstanding these events, in his oral submissions counsel on the appeal pressed ground 3 to the fullest extent imaginable. In doing so, he made no reference to the concession that the judge should disregard Dr Walton's comments. It was only after counsel for the respondent pointed out the concession that Nguyen's counsel sought to deal with the matter. He submitted that trial counsel should not have made the concession, and for that reason he had sought to agitate the point. He ultimately conceded that he should have drawn this Court's attention to the concession from the outset. Then, several days after the hearing counsel provided a written note to the Court stating that while he believed that the concession should not have been made on the plea, he now sought leave to 'withdraw his submissions' and abandon ground 3. He stated that there was no intention to mislead the Court and 'if that was the impression created by my submissions I would apologize to the Court'.
64 Whether intentional or not, counsel's submission was misleading. Frankness and commonsense required that counsel draw to this Court's attention at the outset the fact that the judge identified the 'difficulty' in Dr Walton's report and mentioned it to trial counsel, and that trial counsel asked the judge to disregard the offending comments, which he duly did. If these circumstances had been highlighted, it would have been clear that the judge did not deny Nguyen procedural fairness. In my view, ground 3 was hopeless and counsel, acting reasonably, should not have argued it in the way that he did, if at all.
65 I now turn to grounds 1 and 2, which are variations on the same theme. In my view, the judge did not dismiss Dr Walton's report because it contained an erroneous statement as to Nguyen being a 'lesser player'. Rather, the judge criticised Dr Walton for seriously underestimating the extent of Nguyen's involvement in the heroin business, while still accepting that Dr Walton's conclusions had merit.
66 Counsel submitted, in essence, that the judge gave the report insufficient weight, evidenced by his rejection of the Verdins submission. Counsel submitted that there was no proper basis to reject Dr Walton's conclusions about Nguyen's gambling and depression, and that the judge's listening to the telephone intercepts and observation of Nguyen during the trial was no proper basis for concluding that he offended for financial gain rather than as a result of his gambling and depression. He submitted that, on the evidence, the judge was bound to find that the offending was caused by Nguyen's need for money to gamble in order to alleviate his
67 I reject this submission. It was one thing for the judge to accept, as he evidently did, Dr Walton's view that Nguyen's depression and gambling explained why he became involved in dealing heroin. But it did not follow that the judge was bound to conclude that Nguyen's depression and gambling amounted to impaired mental functioning which caused the offending and thus attracted the principles in R v Verdins.[33] On the contrary, the judge was entitled to conclude that no relevant causal connection had been established.
68 As to ground 4, the judge's sentencing remarks reveal that he was well aware of the difficulty of the sentencing task before him. It is apparent that he took into account the many mitigating factors, and specifically reduced both the head sentence and the non-parole period on account of Nguyen's advanced age and poor health. In my view, far from being manifestly excessive, the sentence imposed was merciful, and advisedly so.
69 For these reasons I would refuse Nguyen's application for leave to appeal against sentence.
[1] A large commercial quantity of heroin (when mixed with another substance) is defined as being not less than one kilogram. A commercial quantity (mixed) is defined as being not less than 500 grams.
[2] Le was aged 50 at the time of sentence and she is now 53. Nguyen was aged 81 at the time of sentence and he is now 83.
[3] None of the accused gave evidence or called evidence.
[4] Different from counsel on the appeal.
[5] Different from counsel on the appeal.
[6] (1986) 24 A Crim R 112, 133.
[9] (1986) 24 A Crim R 112, 133.
[10] [2009] VSCA 34, [14].
[21] Campbell was not an investigating officer in the case.
[25] [1994] HCA 63; (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ).
[26] [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113].
[27] [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40].
[28] Bugeja v R; Johnson v R [2010] VSCA 321, [37]-[39].
[29] [1999] VSCA 69, [36].
[30] See for example R v Bertrand [2008] VSCA 182; (2008) 20 VR 222, 248 [158]; R v Detenamo [2007] VSCA 160; DPP v Taylor [2005] VSCA 222, [22].