Le v The Queen; Nguyen v The Queen [2011] VSCA 42

Court of Appeal (Vic)|2011-02-24|Before: Mr P, Hansen JA, Bongiorno JA, Harper JA

The applicant did not receive a fair trial and as a consequence there has been a miscarriage of justice, due to the failure of the trial judge to adequately or appropriately direct the jury on how they (the jury) should not be influenced or use the concession that the co-accused, Cuong Thi Le's counsel made, namely, that she (Cuong Le) was 'dealing in heroin'.

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:

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:

Your personal history and psychiatric evaluation are set out in the report of Dr Lester Walton, Exhibit HVN1 tendered upon your plea. I have great difficulty with Dr Walton's report. It commences: "It would seem to be clear from the materials that Mr Nguyen was regarded as one of the lesser players in relation to the trafficking operations." If that be Dr Walton's opinion from the material he has clearly not read them properly. You were an integral and important part of Cuong Le's trafficking operations. You have been convicted of trafficking in a large commercial quantity of heroin, and the evidence reveals you to be persistently and continually assisting with the distribution of heroin to persons throughout Melbourne. In addition to assisting Cuong Le you trafficked heroin in you own right. It is simply wrong to describe you as a lesser player.
You were born in Vietnam in 1927 and you left Vietnam in 1978. Prior to leaving Vietnam you were a fisherman and had little formal education. You appear to have lived a subsistence existence in Vietnam. You were married with children before you left there, and you did so by stealing a boat, arriving in Darwin in 1978 at the age of 51 years. You had been in Melbourne for some 10 years, working as a process worker for three years with the Ford motor company.
It is clear on the materials that you on occasions visit the Crown Casino, and you informed Dr Walton that you gamble to offset feelings of personal depression and that you met Cuong Le at the casino.
You suffer from a number of medical conditions including elevated blood pressure and a peptic ulcer. You have been hospitalised in the past with severe pneumonia. You suffer from asthma and use a Ventolin inhaler. Since being in custody you have experienced attacks of asthma. Dr Walton describes you as being depressed and you are currently taking antidepressants.
Clearly your failure to speak English will make your time in prison more onerous for you. It is probably significant that the prison food presents you with difficulties and this fact is unlikely to be helped by your advancing years. Dr Walton is of the view that your depression and gambling explained why you became involved in dealing with heroin.
Given that you have no prior convictions of any sort, and have reached the advanced age of 81 years, in my view Dr Walton's conclusions have merit. Your counsel, Ms Garner, submitted that you suffered from a psychiatric or psychological illness of the type referred to in R v. Verdins [2007] VSCA 102; [2007] 16 V.R. 269 and R v Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398, and that as such your condition moderates the need for general deterrence. I am unable to accept this submission.
Whilst I do accept that you are now depressed and anxious, and further, that the material does indicate that from time to time you would frequent the casino, the evidence does not reveal the existence of any psychological or psychiatric condition connected with your offending in any way.
Having heard the telephone intercepts and observed you throughout the trial it is clear to me that you saw absolutely nothing wrong at all with dealing in heroin and you were motivated to traffic heroin for financial gain.
I take into account in your favour your age. To have reached the age of 78 years without prior conviction, and now 81 years, is a matter to your credit. The absence of relevant prior convictions and apparent prior good character are factors I take into account in reducing the sentence I am about to impose on you.
I also take into account your medical condition, the medications you take, in arriving at an appropriate sentence for you. As I said, general deterrence must be the paramount sentencing consideration for offences of this kind. Those minded to traffic in large commercial quantities of heroin must understand that significant terms of imprisonment await them. The fact that you are now 81 years of age, of course, cannot be overlooked as a relevant sentencing consideration. The authorities, however, make it clear that your age cannot be allowed to be justification for the imposition of an unacceptably inappropriate sentence. However, I do not overlook the fact that the sentence I am about to impose represents a substantial portion of your current life expectancy. I accept that the gaol sentence I will impose on you will be onerous or more onerous for you because of your age.
I have had regard to the decision of DDP v Che Kien [2000] V.S.C. 376. There, at paragraph 16, His Honour Cummins J deals with the principles applicable in sentencing an 82 year old accused. I propose to give recognition to those principles by imposing a significantly shorter sentence than I would otherwise impose to give effect to your advanced years and poor health. In your case, I propose not only to reduce the head sentence that I would otherwise impose, but significantly reduce the minimum term to reflect these factors.

The learned sentencing judge erred in failing to take into account or sufficiently take into account the report of Dr Walton.
The learned sentencing judge erred in dismissing Dr Walton's report on the basis that Dr Walton described the applicant as a 'lesser player' in this enterprise.
In indicating the learned sentencing judge had 'great difficulty with Dr Walton's report' his Honour fell into 'procedural unfairness' in that he did not indicate any such difficulty at the time the report was tendered on the plea.
The sentence is manifestly excessive.

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.

[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).

[28] Bugeja v R; Johnson v R [2010] VSCA 321, [37]-[39].

[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].

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Judgment (45 paragraphs)

Cases Cited (6)