Nguyen v R [2013] ACTCA 11

Court of Appeal (ACT)|2013-02-28|Before: Buchanan JJ

1. At 6.30 am on 26 September 2008 police executed a search warrant at 74 Tom Roberts Avenue, Conder. No one was present. Police seized a number of items associating the appellant with the premises and also found drugs. Amongst the items associated with the appellant which were found in the main bedroom were the following:

• an ACT proof of age card in the name of the appellant issued seven months earlier, on top of a chest of drawers;

• a framed photograph of the appellant and his girlfriend also on top of the chest of drawers;

• a receipt from a St George Bank ATM in the name of J Nguyen for a cash deposit of $5,640 dated 10 days earlier, in a wardrobe;

• a tax invoice from Access Auto Works addressed to the appellant at the address searched, dated eight days earlier.

• membership cards in the name of the appellant to Tuggeranong Valley Leagues Club, Canberra Labor Club, Canberra Tradesmen's Union Club, Canberra Southern Cross Club, Cabramatta Rugby League Club and the ACT Public Library.

3. Drugs were found in the top drawer of a bedside chest of drawers in the main bedroom and in a locked drawer in the kitchen labelled "J's G.S. draw", marked "DO NOT TOUCH". That drawer was adjacent to an unlocked drawer labelled "J's personal draw", also marked "DO NOT TOUCH". The locked drawer containing drugs was able to be unlocked with a key located on a shelf at the bottom of the wardrobe in the main bedroom.

4. On 31 July 2009 the appellant was indicted on two counts of trafficking in a controlled drug, other than cannabis, on 26 September 2008. The charges were brought under s 603(7) of the Criminal Code 2002 (ACT). The drugs were methylamphetamine and N,α-Dimethyl-3,4-(Methylenedioxy)phenylethylamine (MDMA).

5. The charges were heard in a trial before a jury over four days from 28 November 2011 to 1 December 2011. On 2 December 2011 the jury returned a verdict of guilty on each count. The appellant was sentenced on 5 April 2012 to a total term of four and a half years in prison.

6. The appellant has appealed against his conviction. The grounds of appeal are:

(a) Her Honour the trial judge's charge to the jury was unfairly prejudicial to the Appellant, by virtue of Her Honour's numerous references to the Appellant's choice to remain silent;

(b) Her Honour the trial judge failed to direct the jury adequately in relation to the evidence that other persons resided at 74 Tom Roberts Avenue in Conder on 26 September 2008;

(c) There was not sufficient evidence to satisfy the jury that the Appellant was in possession of any of the alleged drugs;

(d) The jury could not be satisfied beyond a reasonable doubt that the Appellant was in possession of any of the alleged drugs without rejecting the evidence that there were other occupants at 74 Tom Roberts Avenue in Conder on 26 September 2008;

(e) The verdicts of guilty were, in each case, unsafe and unsatisfactory.

7. Early in her charge to the jury the trial judge addressed the fact that the appellant had given no evidence, and called no evidence, in the following way:

It is for you to assess the various witnesses and decide whether they were telling the truth. You have seen all the witnesses as they gave their evidence and it is a matter for you entirely whether you accept that evidence.

The accused in this trial has not given any explanation by himself giving or by calling evidence in response to the prosecution's case. There are a number of important directions of law which I must give you in relation to that.

An accused person may always by giving evidence or calling other evidence make a response to the case presented by the prosecution by way of an explanation for the whole or parts of the prosecution's case but there is no obligation to do so.

As I have already pointed out the prosecution in a criminal trial bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence charged. The accused bears no onus. The accused is presumed to be innocent until you have been satisfied beyond reasonable doubt by the prosecution that the accused is guilty.

Although the accused may call or give evidence in relation to the whole or any part of the prosecution's case by way of explanation for it or by way of additional matters which the accused may wish to raise, the accused may equally choose not to give or call any evidence. The accused is entitled to say nothing and make the prosecution prove his guilt.

I direct you, as a matter of law, that the accused's silence in court and the accused's election not to call evidence cannot be used against him. The accused's election not to offer an explanation of the whole or any part of the prosecution's case by giving evidence or calling evidence constitutes no admission by the accused and no such inference must be drawn from that fact.

Nor must that choice by the accused be used by you to fill in gaps in the evidence tendered by the prosecution, and it must not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt. You must not speculate about what might have been said in evidence if the accused had himself given evidence or what might have been said by any other person who might have been called by the accused as a witness in the trial.

8. After the charge to the jury had been given, including a summary of the evidence, the arguments of the prosecution and defence and directions as to matters of law, counsel for the appellant asked the trial judge to give a further direction to:

... remind the jury that there may be reasons unknown to any jury why an accused remains silent, even though apparently he or she is in a position to counteract or explain evidence.

9. The supplementary direction was said to be necessary because the trial judge had made:

... five and it's possibly six or more references to him not being obliged to give evidence ...

10. The trial judge gave the supplementary direction sought, although no serious complaint can be made or maintained against the direction first given. It is a mistake and a mischaracterisation of that direction not to regard it as a composite one designed to emphasise to the jury the right of an accused to remain silent, without prejudice to his or her position, rather than as described by defence counsel.

11. Indeed, the direction her Honour gave followed quite closely the recommended direction in the NSW Judicial Commission's Criminal Trial Courts Benchbook. Not to have given such a comprehensive direction may have caused a miscarriage of justice: R v Macris (2004) 147 A Crim R 99 at 102-4; [20]-[31].

What I should add to that is a reminder that there may be reasons unknown to you or to any of you why an accused person remains silent at trial, even though he is apparently in a position to counteract or explain the evidence that has been given.

13. Had there been any difficulty, or lack of fairness to the accused arising from the initial direction, it was rectified by the supplementary direction.

15. As expressed in this ground of appeal, the criticism of the trial judge was misplaced. The trial judge was not required to direct the jury about every specific item of evidence and its significance (Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 561). In any event, as the respondent pointed out in written and oral submissions, the trial judge did, at the request of the defence, draw the jury's attention to the fact that there were people, other than the appellant, coming and going from the premises where the drugs were found. Assessment of the significance of those facts for the question of whether the drugs were in the possession or control of the appellant was then a matter for the jury.

16. These grounds are at the heart of the appeal against the conviction of the appellant. They depend upon the proposition that it was not open to the jury to find that the appellant was in possession of the seized drugs because there were other reasonable hypotheses consistent with innocence which the jury could not exclude in the proper discharge of its functions, so as to be satisfied beyond reasonable doubt of the guilt of the appellant. See R v Filippetti (1978) 13 A Crim R 335.

17. The principal contention advanced to support this argument was that the jury could not be satisfied that the drugs were not under the control of the appellant's brother, Diec John Nguyen (known as John). Various facts were pointed to in support of the hypothesis:

• Syringes in an empty Dunhill Blue packet were found in the unlocked drawer in the kitchen and John Nguyen had (at least in the past) smoked Dunhill Blue cigarettes;

• Scales were found in the kitchen with residue of heroin and methamphetamine. John Nguyen was using heroin in September 2008. A packet of Dunhill Blue cigarettes was beside the scales.

18. Diec John Nguyen gave evidence at the trial in the prosecution case. Although he admitted that he was still taking heroin in September 2008 he denied, both in his evidence in chief and in cross-examination, that he had ever taken drugs from the house where the drugs were seized. He also said in his evidence that he never accessed drugs at that address, that he never took drugs at that address, that he did not live there, that he had no personal items there and that he did not own anything there.

19. At the hearing of the appeal it was accepted by counsel for the appellant that he could not argue that it was not open to the jury to accept this evidence. If it was accepted, necessarily the jury would reject any hypothesis that the appellant's brother, and not the appellant, might have had possession or control of the drugs found in the main bedroom and the kitchen. It was open to the jury to be satisfied beyond reasonable doubt, therefore, that the appellant had possession or control of the drugs.

20. With much less support in the evidence, it was also argued that one of other people known to go to the house, or who were in same way associated with it, might have been in possession or control of the drugs. As the written submissions for the respondent pointed out, however:

There was ample evidence from which the jury could conclude that the appellant resided at the house and that the main bedroom was his bedroom. The drawer in the kitchen contained the bulk of the methylamphetamine and the key to that drawer was found in the appellant's bedroom. The MDMA was found in the top drawer of the main bedroom.

21. A circumstantial case must be considered in its entirety, and not piecemeal (R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [46], [48]). The High Court said in R v Hillier (at [48]):

Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.

22. Notwithstanding the speculative possibility suggested, for which there was little other support, that some other person, and not the appellant, might have had control or possession of the drugs, there was sufficient material from which the jury could properly conclude that the appellant not only resided at the premises where the drugs were seized, but that he had possession and control of them.

23. In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, the High Court emphasised (at 493) that the question which a court of criminal appeal must ask itself, when a ground of appeal such as that in ground (e) of the present appeal is presented to it, is "whether it thinks upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty", and that a court of criminal appeal must:

... not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.

24. The High Court went on, in M v The Queen, in part of a longer passage endorsed in R v Hillier (at [20]), to suggest (at 494) that (in some cases) a reasonable doubt experienced by a court of criminal appeal is a doubt which a reasonable jury ought to have experienced but also said (at 494-5):

... the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

25. The present is not a case which falls within the class where there is reason to doubt the assessment made by the jury. It may not be said that the evidence before the jury lacked credibility, or that it "contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force" in some material respect (see M v The Queen at 494).

26. The challenge in grounds (c), (d) and (e) should be rejected.

27. It follows from the preceding analysis and discussion that none of the grounds advanced in the appeal against conviction should be accepted. That appeal should be dismissed.

28. After he was found guilty on 2 December 2011 the appellant was, on 5 April 2012, convicted and sentenced to terms of four and a half years and two and a half years in prison, such sentence to be served concurrently. In recognition of his claimed desire to rehabilitate himself a non-parole period of two years was set. The sentence was backdated to 14 October 2011 to account for time the appellant had already spent in custody.

29. The appellant has appealed his sentence, independently of the appeal against his conviction.

(a) Her Honour the sentencing judge erred as a matter of law in finding that the Appellant engaged in the criminal conduct in question purely for financial gain driven by greed;

(b) Her Honour, having found that the Appellant lapsed into drug use in September 2008 at a time when he was sharing a house with other drug users could not conclude as the only reasonable hypothesis for the purposes of sentencing that the Appellant was driven by greed and committed the offences purely for financial gain;

(c) There being no direct evidence as to why the Appellant committed the offences and no evidence of any unexplained wealth at the relevant time, Her Honour could not find as an aggravating factor that the Appellant offended purely for financial gain driven by greed;

(d) Having wrongly found that the Appellant committed the offences purely for financial gain and driven by greed, Her Honour placed too much emphasis on both general and specific deterrence;

(e) Her Honour failed to give sufficient weight to the facts; that the Appellant had relapsed into illicit drug use at about the time of the offending; the Appellant's long history both pre and post offending of illicit drug use, and the Appellant's numerous attempts to cure his drug addictions in fixing both the head sentence and the non-parole period in regard to the charge of trafficking in methylamphetamine paying proper regard to:

(i) The subjective criminality of the Appellant's conduct;

(ii) The Appellant's prospects of rehabilitation; and

(iii) The Appellant's prospects of reform.

31. The appellant was convicted of trafficking drugs. It is of the essence of such an offence that an offender sells or is involved in selling drugs which means supplying them for gain. See the definition of "trafficking" in s 602 of the Criminal Code 2002 (ACT). If it is desired to mitigate the seriousness of such conduct - e.g. because the conduct was motivated by a need to sustain a drug habit or addiction - an accused must establish the matter or matters relied on in mitigation on the balance of probabilities. If necessary, evidence must be called to establish such matters.

32. No evidence in mitigation was called. There was no other evidence that the accused was motivated by a perceived need, desire or compulsion to support a personal drug habit or addiction. The sentencing judge was entitled to proceed on the basis, arising naturally from conviction of the appellant for trafficking drugs, that he was motivated by greed and committed the offence for financial gain, and sentence the appellant accordingly. No error is shown.

33. The ground is predicated upon the allegation of error in relation to grounds (a), (b) and (c). The premise has not been established and this ground of appeal cannot survive rejection of that premise.

34. It has not been contended that the sentence was manifestly excessive, independently of the fate of the other grounds of appeal. The contention that insufficient weight was given to the appellant's history of prior illicit drug use and prospects of reform and rehabilitation cannot survive reference to the remarks of the sentencing judge. Such matters were clearly taken into account. This ground has no substance and should be rejected.

35. The appeal against the sentence imposed on the appellant must also be dismissed, for the reasons given above.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Ben Aulich & Associates

Solicitor for the Respondent: Director of Public Prosecutions (ACT)

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