Nguyen v The Queen [2016] VSCA 253

1 Following a trial in the County Court, on 22 October 2015 a jury found the applicant guilty of trafficking not less than a large commercial quantity of a drug of dependence (charge 1), relating to 4.813 kilograms of a mixture of heroin and another substance;[1] and trafficking a drug of dependence (charge 2), relating to 11.2 grams of a mixture of heroin and another substance.[2]

2 On 26 November 2015, the trial judge sentenced the applicant to be imprisoned for 12 years on the first charge, and for 12 months on the second. No order for cumulation was made, so that the total effective sentence was 12 years' imprisonment. The judge fixed a non-parole period of eight years.[3]

3 The applicant sought leave to appeal against both conviction and sentence. Both applications were concerned only with the conviction and sentence on the first charge.

4 With respect to conviction, the applicant relied on a single ground as follows:

1. The jury's verdict of guilty is unreasonable or cannot be supported having regard to the evidence, in particular, in that:

(a) it was not open to the jury to be satisfied beyond reasonable doubt that a large commercial quantity of heroin was pressed and/or sealed in the flat located at 93/12 Holland Court, Flemington, or, in the alternative, in that

(b) it was not open to the jury to be satisfied beyond reasonable doubt that the applicant 'actively and physically' pressed and/or sealed a large commercial quantity of heroin in the flat located at 93/12 Holland Court, Flemington.

5 So far as sentence was concerned, the applicant relied on the following ground:

1. The learned sentencing judge erred in sentencing the applicant on the basis that he had trafficked in 4 kilograms of heroin.

6 For the reasons that follow, we would refuse both applications.

7 Given that the applicant contends that the conviction on the first charge is unsafe and unsatisfactory, it is necessary to summarise the evidence in some detail.

8 On 26 November 2013, an acquaintance of the applicant's, Duc Nguyen (for convenience, 'Duc'),[4] rented storage unit numbered 3017 at Kennards Storage, Raleigh Road, Maribyrnong.

9 Some three weeks later, on 16 December 2013, members of the Australian Federal Police ('AFP') and Victoria Police entered the storage unit and discovered a number of cardboard cartons, a white styrene foam carton and a pink handled shopping bag.

10 On top of the foam carton, located in the right rear corner of the unit, was a plain brown cardboard carton with Asian characters on the outside. The plain cardboard carton was opened at the base. Inside police found a black and yellow cardboard 'Cole and Bright Solar Light Box'. In turn, that box contained a 'Louis Vuitton' cloth bag, in which were six smaller plastic bags containing off-white, yellow, brown and white substances (1,363.9 grams in total). Under the Louis Vuitton bag were six compressed disks of off-white substance, disk fragments, compressed disks - each disk having a diameter of 12 centimetres - and powder, (2,105.3 grams in total); vacuum-packed 'FoodSaver'[5] bags containing disk fragments (700.5 grams in total); a blue plastic shopping bag containing a 'Hercules' brand clip seal bag[6] holding a FoodSaver bag containing brown fragments (348.9 grams) and freezer bag tied up in four layers with brown fragments (294.1 grams in total); and a small clear plastic bag containing a quantity of off-white semi-compressed powder (0.3 grams in total). The compressed disks, disk fragments, chunks and remaining powdery substance contained heroin in a mixture and weighed a total of 4.813 kilograms, this quantity being the foundation of charge 1.[7]

11 The various items containing a heroin mix, located within the brown carton with Asian characters, may be conveniently described in the following table:

Vacuum sealed FoodSaver bag containing disk fragments

Vacuum sealed FoodSaver bag containing disk fragments

Hercules brand clip seal bag containing a FoodSaver bag containing brown fragments

Four layers of a freezer bag where each layer was tied in a knot, and the innermost bag contained a quantity of brown fragments

Within a clip seal packet loose in box with other different drugs in small packets

A small clear plastic bag containing a quantity of offwhite semi-compressed powder

'Glad' snap lock bag with two layers of freezer bags containing off-white semi-compressed fragments and powder

Two layers of Glad snap lock plastic bags, innermost bag containing yellow powder

Four bags from inside a freezer bag tied in a knot containing yellow fragmented pieces

Remaining bag containing a quantity of white fragmented pieces

Clip seal bag further containing a Goliath bag containing brown coloured fragmented pieces

Freezer bag that had been cut along the top and tied in a knot, containing white fragments

FoodSaver bag containing brown fragmented pieces and 5/8/7/2, a freezer bag tied in a knot containing brown fragmented pieces

Total of mixture of heroin and substance in all Items

12 The only items in the above table that were not forensically linked to the heroin press at the Holland Street flat were Items numbered 5/7/2 (in a clip seal packet); and 5/8/1, 5/8/2, 5/8/3, and 5/8/6 (from inside the Louis Vuitton bag).

13 Significantly, the applicant's fingerprints were found on a number of items in the storage unit, as were Duc's. Thus, two of the applicant's fingerprints - one from his left middle finger and another from his right little finger - were found on the Hercules brand clip seal bag, and on 17 other items within a 'Kennards Jumbo Carton' ('the Jumbo carton') which was also inside the storage container. Inside the Hercules brand clear clip seal plastic bag was one heat-sealed FoodSaver bag containing 348.9 grams of compressed brown coloured fragments containing heroin. That Hercules brand bag was itself found within the blue plastic shopping bag located inside the plain brown cardboard carton with Asian characters.

14 Other items in the Jumbo carton on which the applicant's fingerprints were found included:

• an ANZ Bank deposit envelope within a brown paper shopping bag, found inside a bag that contained newspaper and a number of other plastic bags;

• a piece of paper with '08712961' written on it and a piece of magazine paper, located inside a 'Ralph Lauren' shopping bag;

• a freezer bag and a portion of a freezer bag, found in a white plastic shopping bag;

• an opaque bag contained within a brown paper shopping bag; and

• a white shopping bag found inside a brown shopping bag.

15 Duc's fingerprints were also found on a number of items inside the Jumbo carton, including an envelope inside the Ralph Lauren shopping bag; an empty freezer bag tied in a knot; on a plastic bag with a 'suffocation' warning and a pie dish freezer bag found within a white plastic bag (containing tissues, a cupcake wrapper, cardboard packaging, various types of plastic bags and plastic bag pieces, and other items); a yellow 'Athlete's Foot' shopping bag; and on an empty padlock packet, two freezer bags and two clip seal plastic bags (inside a blue and white patterned 'Howards Storage World' polypropylene shopping bag with handles). Another of Duc's fingerprints was also found inside the camouflage Country Road duffle bag within a medium-sized Kennards carton. Forensic technicians discovered a fingerprint inside a small sandwich clip-seal bag on a freezer bag, which contained 224 grams of a substance used as a filler or cutting agent for increasing the volume of a given mixture of drugs.

16 Police also located an electricity bill in the applicant's name dated 24 October 2013, requiring payment of $25.41 by 13 November 2013. The bill was found inside a Sunbeam vacuum sealing machine carton, which was located in a white and pink 'Tiger' brand double-handled shopping bag.

17 At the time police searched the Kennards storage unit, the applicant was in custody. He had been arrested in Richmond at 9.08 pm on Thursday, 21 November 2013, when he walked into a 'Housing Commission' flat situated in Elizabeth Street whilst it was being searched by Victoria Police members in relation to a separate heroin trafficking investigation. Police had initiated the search of the Elizabeth Street flat following their arrest of Thanh Chinh Nguyen ('Chinh') the previous day, having interrupted a drug transaction between him and another. (Although drugs were found in the flat, the applicant was not charged in relation to them.) When the applicant unexpectedly walked into the Elizabeth Street flat police found him to be carrying several keys. As a result of information in police possession, investigators transported the applicant to a flat situated at 93/12 Holland Court, Flemington. A key that the applicant had been carrying was found to unlock the front door.

18 It seems that, during mid-November 2013, police had been monitoring movements in and out of the flat in Holland Court, via video surveillance cameras installed by a company, Integrators Australia. An investigator, Sergeant Loren Gray, who had been monitoring the product of the surveillance cameras, had observed the applicant entering and leaving the Holland Court flat, using a key to gain entry and to lock up upon leaving.

19 The Holland Court flat was virtually empty. There was no refrigerator and no food, and there was no television. The flat did, however, contain a single mattress on the floor, a single office chair, a wooden item in one bedroom, a supermarket shopping trolley and some assorted cartons. Other items of significance were a sizeable aluminium and steel press frame ('the heroin press'), together with a couple of hydraulic car jacks, matching jack handles, a number of steel and aluminium machined dies, plungers, bars and a round steel billet. Two surgical masks - one hanging on the bathroom door handle and one hanging on a coat-rack near the front door - were also significant. The carpet was also observed to be discoloured and stained in the middle of the room where the heroin press had been found. Furthermore, four sets of electronic scales were found in the kitchen drawers. A white heat-seal machine was also observed on the kitchen bench. In a bowl inside a kitchen cupboard police found a plastic freezer bag that contained some white chunky substance, ultimately found to be 11.2 grams of heroin mixture. The heroin located in the freezer bag was the foundation of charge 2 on the indictment.

20 Police interviewed the applicant via an interpreter in the morning of 22 November 2013. The interview commenced at 12.12 am. Before the interpreter arrived, police informed the applicant that he had the right to communicate with (or attempt to communicate with) a friend or relative to inform that person of his whereabouts. At 2.30 am, the applicant told investigators, 'I would like to call my family to let them know'. The interview was suspended at 2.32 am to permit the applicant to do so. When the interview resumed at 2.36 am, police asked, 'Can you tell me what you just did?', and the applicant replied (through the interpreter), 'Yeah. I just make a phone call to my girlfriend'.

21 During the balance of the interview, the applicant told police that he had known Chinh for about two years and that he would have coffee with him every three or four days. He said that the Holland Court flat was his girlfriend's flat and that he had been trying to do some cleaning-up there. The applicant admitted he had keys to that flat and that police had found a car jack. He also agreed that the press frame was a 'heroin press' and that he had seen Chinh use it. The applicant also said that he had seen what he assumed to be heroin at the flat but that it got moved out three days earlier by Chinh who 'took a bag and took it out of the house'. Police asked the applicant when he was last at the flat and he replied 'two or three days ago' to do 'sweeping and cleaning'. He said that furniture had been moved out of the flat about three months earlier. The applicant claimed that Chinh also had a key for the Holland Court flat for 'about three days' and that he had told Chinh 'not to do anything illegal in the house'. The applicant repeated his claim that Chinh had earlier taken his key and used it to gain access to the flat. He also added that he had received the key back from Chinh on Tuesday afternoon (that is, 19 November 2013) between 2.00 pm and 2.45 pm.

22 As part of their investigation, police obtained video footage from a surveillance camera that had a view of the Holland Court flat and reviewed it to see what activity had been occurring there both before and after 21 November 2013. The applicant was seen going to the flat on 16, 17 and 20 November 2013. On each occasion he let himself in with a key, sometimes admitting other males as well. The footage showed that he spent lengthy periods inside the flat on 16 and 17 November, and a relatively short time on the morning of 20 November.[8]

23 The video camera footage from the vicinity of the Holland Court flat showed the following:

• on 16 November 2013, at about 3.10 pm, the applicant used a key to unlock the door to the Holland Court flat and he went in;

• between 4.01 pm and 4.22 pm, two males attended the flat, were admitted by the applicant, and then left a short time later;

• at about 4.38 pm, the applicant left the flat and appeared to lock the door behind him;

• on 17 November 2013, at about 2.39 pm, the applicant used a key to unlock the door to the flat and entered;

• between 2.44 pm and 3.49 pm, a male went to the flat and was allowed in by the applicant; the male then left a short time later; the male then returned with another male and both entered the flat; and the second male left a short time later, followed by the first;

• at about 3.57 pm, the applicant left the flat and locked the door behind him;

• on 20 November 2013, at about 8.28 am, the applicant used a key to unlock the door to the flat and went inside;

• at about 8.36 am, a male went to the flat and was admitted by the applicant, leaving a short time later; and

• at about 8.41 am, the applicant left the flat and appeared to lock the door behind him.

24 Camera footage of the Holland Court flat also showed that, at the time when the applicant was being interviewed by police, and half an hour after police had permitted him to telephone his 'girlfriend', Duc went to the flat together with his partner Thi Thanh Ha Tran. Duc can be seen using a key in an attempt to gain entry, but cannot open the door. He and Tran then leave.

25 Later the same morning - 22 November 2013 - footage from the Holland Court camera shows Duc returning to the flat. In particular:

• at 9.23 am, Duc returned to the flat and went inside alone;

• at about 9.39 am, he left the flat carrying a black and white re-usable shopping bag (which the prosecution contended was the 'Vintage Cellars' bag found within the Kennards storage unit) and a white and blue reusable shopping bag (which the prosecution contended was the 'Howards Storage World' bag found in the Kennards storage unit), both bags appearing to contain items;

• at 9.43 am, Duc returned to the flat with a shopping trolley;

• at about 9.49 am, another male also entered the flat; and

• between 9.51 am and 10.20 am, Duc and the other male removed a number of items from the flat - including a shopping bag with a distinctive blue and white pattern, a black shopping bag with handles, a small dark square box, a large white rectangular box, a second large rectangular box, a green plastic bowl, a clear plastic tub and a white plastic bottle - sometimes using the shopping trolley.

26 It was part of the prosecution case that the white vacuum heat-seal machine from the kitchen bench was packed by Duc into the blue and white patterned 'Howards Storage World' shopping bag and transported from the Holland Court flat. That that bag ultimately found its way into the Kennards storage unit, complete with the white heat-seal machine still inside it.

27 Duc flew out of Australia on 27 November 2013 and did not return until 4 February 2014.

28 The applicant remained in custody from his arrest on 21 November 2013, until he was bailed on 4 December 2013. There was no evidence that he had anything to do with the storage unit after he was released on bail.

29 On 16 December 2013, law enforcement personnel removed the illicit drugs from the Kennards storage unit and replaced them with inert substances on 18 December 2013. The boxes and cartons had been repacked and carefully replaced to their original positions in the storage unit 3017 so as to hide the fact that they had been disturbed. Three covert video surveillance cameras were also fitted near and above the storage unit so as to monitor activity relating to the unit.

30 One of the distinguishing features of the 4.813 kilograms of heroin and mixed substance seized by police was that more than half of it was in the form of complete or fragmented compressed disks. Six complete disks of heroin - 119.5 millimetres in diameter, between 25 and 26 millimetres high and weighing around 350 grams each - were discovered within heat-sealed vacuum packets. A few bags contained fragments of broken heroin disks, some of which were of slightly smaller diameter. The remaining heroin consisted of crumbled disk chunks and fragments of varying size (down to powder consistency).

31 A forensic comparison of the heroin disks and the mechanical heroin press that police had seized from the Holland Court flat on 21 November 2013 established that the heroin disks had been compressed in that press. Moreover, it was established that the white vacuum heat-seal machine found inside the Howards Storage World carry bag had been used to heat-seal the three double-disk packages of heroin and several of the other vacuum heat-sealed bags containing fragments and powder.

32 As we have mentioned, on Tuesday, 4 February 2014, at about 10.00 am, Duc returned to Melbourne from Vietnam aboard a Vietnam Airlines flight. He cleared Customs at about 11.05 am, and then caught a taxi from Melbourne Airport to an address in Ascot Vale.

33 Later that day, at about 12.00 pm, Duc was picked up on surveillance camera footage arriving alone outside Kennards Self Storage unit 3017 at Maribyrnong. He was seen to enter storage unit 3017, where he began rummaging through a number of the items. The prosecution case was that he opened the plain brown cardboard carton containing substituted drugs and transferred the entire contents into the nearby white styrene foam box. He then retrieved two Blackberry telephones from the 'Tiger' bag and left. The only things that Duc removed from the storage unit were the Blackberry phones. He had not taken anything into the unit.

34 That evening, at about 11.30 pm, Duc was again observed on surveillance camera footage arriving outside storage unit 3017. He was observed to get out of a car and remove a large rectangular black-coloured box from the vehicle, which he carried into the storage unit. Duc was observed to enter the storage unit, and place the box on the box containing the substituted drugs.

35 The next day, Wednesday, 5 February 2014, at about 3.55 pm, investigators entered storage unit 3017. Federal Agent Andrew Davies looked inside the large rectangular black-coloured box Duc had put there. Inside, Davies located $169,900.00 - which he seized as the suspected proceeds of crime - and a new cache of 524.8 grams of heroin.[9]

36 A number of witnesses gave evidence as part of the prosecution case.

37 Detective Senior Constable Adam Higgins gave evidence that he was involved in an investigation of heroin trafficking involving Chinh. In the evening of 21 November 2013, the applicant was arrested when he walked into a flat in Richmond connected with Chinh, whilst Detective Higgins and other police officers were conducting a search of the premises. The applicant was taken by two other police officers to the Holland Court flat, and was later taken to the Melbourne West Police Station, where he was interviewed by Detective Higgins and Sergeant David Barlow. The record of interview they conducted with the applicant was tendered.

38 Detective Senior Constable Courtney Howard gave evidence that she obtained video camera footage from Integrators Australia. That company is responsible for managing surveillance cameras installed in Department of Human Services (formerly 'Housing Commission') high-rise units, so as to assist law enforcement agencies with investigations. Detective Howard obtained video feed from a camera that had a view of the entrance to the Holland Court flat between 15 November and 6 December 2013. She viewed the CCTV footage from 16 November up until 21 November 2013, when the applicant was arrested. The footage showed the applicant at the flat on 16, 17 and 20 November 2013. There is no footage for 18 or 19 November 2013, because the camera was faulty on those dates.

39 Federal Agent Andrew Davies, a member of the AFP, gave evidence that he isolated some further CCTV footage on the Holland Court flat after the applicant was arrested in the evening of 21 November 2013. He identified Duc attending the flat at 3.06 am on 22 November 2013, where he was unsuccessful in gaining entry. Duc was shown to leave and return several hours later at 9.23 am. Duc was also shown transporting various items out of the flat between 9.39 am and 10.12 am on 22 November 2013. Federal Agent Davies also gave evidence of the seizure of various items from the flat, and of CCTV footage taken on 26 November 2013, showing Duc depositing items at the Kennards storage facility. On 4 February 2014, Davies located $169,900.00 cash and 524.8 grams of heroin in the storage unit.

40 Senior Constable Igor Rusmir was a police officer involved in the search on 21 November 2013 of the Richmond flat linked to Chinh. He gave evidence that once the applicant had been arrested, he and Sergeant Hughes conveyed the applicant to the Holland Court flat. Police conducted a search of the flat, photographing the premises and seizing a number of items suspected of being used in drug trafficking. The two officers then transported the applicant to the Melbourne West Police Station.

41 Charles Shepherd was the manager of the Kennards Self Storage facility in Maribyrnong in November 2013. He gave evidence that on 26 November 2013, Duc registered for storage unit 3017, noting on the application form that the purpose for the rental unit was to store household goods for a period of two months. Mr Shepherd also described how an authorised person could access their unit, and the dates that storage unit 3017 had been accessed by Duc and law enforcement personnel.

42 Detective Sergeant Andrew Hughes, who was attached to the Victoria Police Drug Taskforce, was assisting other police officers during the search of the Richmond flat on 21 November 2013, when the applicant entered in possession of a set of keys. He gave evidence that the applicant was conveyed to the Holland Court flat by police so they could conduct a search, and that the door to the flat was opened with the keys that had been in the applicant's possession. After searching the flat, Sergeant Hughes and Senior Constable Rusmir conducted a brief introductory segment of a record of interview with the applicant at the Melbourne West Police Station.

43 Steven Olinder was a tool-mark examiner with the AFP, holding the rank of Sergeant. He conducted a forensic examination of the heroin press from the Holland Court flat and concluded that 'base plate A' of the press had come into contact with heroin disks and fragments found at the storage facility. Sergeant Olinder reproduced a tool-mark demonstration chart to show how the marks on the base plate had been transferred on to the heroin disks during the compression process. In cross-examination, Sergeant Olinder accepted that there were additional marks (signalling further damage) on base plate A that were not observed on the disks. In the absence of further information (such as the age of the heroin disks), he could not say when these further damage marks would have occurred to the base plate.

44 Detective Senior Constable Geoffrey Spencer gave evidence that he attended the Kennards Storage facility on 16 December 2013 to examine the contents of storage unit 3017 associated with Duc to catalogue the items found.

45 Amy Malone, a fingerprint expert with the AFP, gave evidence that a controlled delivery operation was conducted on items removed from the Kennards storage facility on 17 December 2013. This involved police removing all illicit substances from packaging, replacing them with fake substances and placing them covertly into the storage unit waiting for persons of interest to attend. She also gave evidence about conclusions drawn from forensic examinations into the white heatseal machine that were connected to a number of items in the brown carton. Further, she identified the applicant's two fingerprints on Item 5/5/1 (a blue plastic shopping bag containing 348.9 grams of brown fragments).

47 As will have been evident from the preceding, the prosecution case at trial was circumstantial. The prosecution contended that the applicant was an 'occupier' of the Holland Court flat and had control of it, since he had a key to it and opened the door to admit others. Further, video footage showed him inside the flat on Saturday, 16 November 2013, for an hour and 28 minutes; on Sunday, 17 November 2013, for an hour and 18 minutes; and on Wednesday, 20 November 2013, for 13 minutes.

48 The prosecution contended that the evidence demonstrated that the applicant was complicit in preparing heroin for trafficking in the Holland Court flat, in that he participated in the pressing and heat-sealing of the heroin disks and broken disk fragments and the packaging of other smaller quantities. It was argued that the evidence pointed strongly to the Holland Court flat as being a heroin pressing and sealing facility. Indeed, it is apparent that the flat appears to have had no other use other than for the pressing and sealing of heroin for the purposes of trafficking.

49 Inside the flat, on 21 November 2013, police found the heroin press used to compress the heroin located in the Kennards storage unit; jacks; dies; plungers; metal bars; two surgical masks; the white vacuum heat-seal machine; and the Howards Storage World carry bag. The heroin press used to compress heroin remained at the flat in the applicant's possession and under his control at a time when Chinh was in custody, and when - on the applicant's own version - he had taken possession of the flat key from Chinh on the Tuesday prior between 2.00 and 2.45 pm.

50 Further, the prosecution case was that the Howards Storage World and Vintage Cellars carry bags, and the white vacuum heat-seal machine found within the Kennards storage unit, all came from the Holland Court flat. It was likely that some or all of the heroin disks and disk fragments were at the flat on 21 November 2013 (but were not discovered by police) and were transported from the flat by Duc on the morning of 22 November 2013. The large number of fingerprints from both the applicant and Duc on items within the Kennards Jumbo carton in the Kennards storage unit was consistent with Duc having scooped up items that the applicant had touched from within the Holland Court flat. Moreover, the applicant's fingerprints on the Hercules brand clip seal bag containing 348.9 grams of compressed heroin (found within the blue plastic shopping bag within the plain cardboard carton with Asian characters) directly connected the applicant to the heroin.

51 The forensic examination of the heroin press from Holland Court positively established that the press 'base plate A' came into contact with the heroin disks and disk fragments from within the storage unit. Further, the diameter of the compressed heroin disks, and the outside diameter of the heroin disk fragments, are consistent with dies found in the Holland Court flat; and the white vacuum heat-seal machine from the flat was also used to seal the double disk packs and other vacuum heat-sealed bags within the storage unit.

52 With respect to charge 2, it was contended that the applicant had the 11.2 grams of heroin mix in the kitchen cupboard at the flat - found by Rusmir on 21 November 2013 - for the purposes of sale.

53 In his final address, among other submissions, counsel for the applicant told the jury that his client 'stood by' the contents of his record of interview. He submitted that the prosecution had failed to prove that the applicant had participated in the compressing or packaging of the specific drugs - 'that specific stash' - located in the 'Cole and Bright' box, found within the brown carton with Asian characters inside the Kennards Storage facility.

54 Counsel submitted that the evidence supported the contention that the drugs were put into the storage facility on 26 November 2013, but that the applicant was in custody from 21 November 2013. There was a 'massive gap' between 22 and 26 November 2013, during which there was no evidence of what Duc was doing. The prosecution's 'problem' is that they can only put the applicant in 'the vicinity of Holland Court at such a time when [the jury] might surmise there's a press there for a few days at best'. There are two days where there is no camera footage available, during which time 'we just don't know who went in and out on those days or with what'. Moreover, the applicant told police that Chinh had given him back the key to the flat on 18 or 19 November 2013, 'and on 18 and 19 November you've got no footage of what's going on at Holland Court, who's coming, who's going, whether they're using their own key, whether they're using borrowed key [sic.], whether they're taking an item in there, whether they're taking items out of there, whether [the applicant is] even there'.

55 Much of the 'stuff' found in the storage unit, counsel submitted, was not at Holland Court, and is Duc's 'personal items', and 'there's no evidence whatsoever that Duc took any drugs out of Holland Court'. Counsel submitted to the jury that, 'Your common sense will tell you those drugs could have been anywhere'.

56 Further, counsel said, 'So if you're looking at the Hercules bag on its own, that's a quantity that's under commercial quantity, if you were satisfied beyond reasonable doubt that [the applicant] packaged those drugs ... but not satisfied of any others to the requisite standard, your verdict on Charge 1 would be not guilty of large commercial trafficking and you'd be able to look at an alternative of just trafficking in respect of that'.

57 With respect to charge 2, counsel submitted, 'I think I've made the point fairly clearly, it's a pretty simple proposition, not [the applicant's] drugs, he didn't know they were there, someone else's - you might think probably Chinh's - not for us to prove, not ours, didn't know they were there'.

The applicant's submissions on the unsafe and unsatisfactory ground

58 In this Court, the applicant conceded that the evidence tended to establish that a significant proportion of the heroin found in the storage unit in the cardboard box with Asian characters on it was pressed and sealed by the heroin press and heatsealer that was found in the Holland Court flat when police searched the flat on 21 November 2013 (after having arrested the applicant). It was submitted, however, that there was no evidence which established when the heroin press and heat-sealer were placed in the flat.

59 It was submitted that the only direct evidence establishing a connection between the flat and the applicant was the 24 hour video surveillance evidence showing that the applicant entered the flat with a key on 16, 17 and 20 November 2013 (for the times and in the manner described in the prosecution summary). There was no evidence of video surveillance prior to 16 November 2013 and the surveillance camera was inoperative on 18 and 19 November 2013. The flat was searched by police on 21 November 2013 and no heroin was found (other than the heroin the subject of charge 2). The heroin press was seized during the search. Significantly, heroin was found at the residence of Chinh (the person the applicant said was responsible for the heroin press in the flat and the person who had, so the applicant said, the key to the flat on 18 and 19 November 2013).

60 The applicant recognised that the 'most damning' piece of evidence against the applicant was the presence in the storage unit of the cardboard box with Asian characters on it containing a bag of heroin - that was sealed by the relevant heat-seal machine containing heroin pressed by the seized press - known as the 'Hercules' bag. Two of the applicant's fingerprints were on this bag. Indeed, in the course of argument counsel conceded - realistically - that it had been open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of trafficking the heroin found within the Hercules bag. (Of course, the heroin within that bag had a weight of 348.9 grams, which is less than both the large commercial quantity and commercial quantity of heroin and a mixed substance.[10])

61 It was submitted that the jury's verdict of guilty on charge 1 is unsafe and unsatisfactory, in particular having regard to the evidence that, first, it was not open to the jury to be satisfied beyond reasonable doubt that a large commercial quantity of heroin was pressed and/or sealed in the Holland Court flat; or, secondly (and alternatively), it was not open to the jury to be satisfied beyond reasonable doubt that the applicant actively and physically pressed and/or sealed a large commercial quantity of heroin in the Holland Court flat.

62 The prosecution case was that the applicant had trafficked in heroin by preparing the heroin for trafficking in the Holland Court flat by physically pressing and/or bagging and sealing the heroin. It was submitted that the prosecution case was not one of complicity with another (for example, by acting in concert, by being in a joint venture or by aiding and abetting, a principal offender). No directions were given to the jury concerning complicity.

63 Counsel conceded in argument that there was a 'powerful case' that 'Holland Court was being used in relation to the drug trade in some respect', and that there was a 'powerful case' that the applicant was 'fully aware' of that fact. But for the prosecution case to have succeeded, so it was argued, it needed to be open to the jury to conclude beyond reasonable doubt, first, that not less than a large commercial quantity of the heroin found in the storage unit was pressed and/or sealed in the Holland Court flat, and, secondly, if this was so, then that not less than a large commercial quantity of that heroin was actually - in the sense of physically - pressed and/or sealed in the flat by the applicant and not by somebody else. It was submitted that both of these related contentions were, on the evidence, unsustainable.

64 With respect to the first contention, in light of the fact that the heroin press and heat-sealer were easily moveable items; that nothing could confidently be said about the whereabouts of the heroin press and heat-sealer prior to 20 November 2013 (given that it cannot be dismissed that these items were first placed in the flat on 1819 November 2013); that the storage unit heroin was not found upon the search of the flat conducted by police on 21 November 2013; and that the applicant's fingerprints were found on a bag containing some 350 grams of compressed brown fragments containing heroin; it is little more than speculation to suggest that a large commercial quantity of the storage unit heroin was actually pressed and sealed in the flat. It was submitted that, although the flat may on 21 November 2013 have possessed all the hallmarks of a pressing and sealing station, there was no means of excluding the reasonable possibility that the flat had yet to produce not less than a large commercial quantity of heroin. The only evidence that could perhaps provide a link to establish that the heroin in the storage unit was produced in the flat - rather than at some earlier period - was the applicant's fingerprints on the Hercules bag. Thus, so it was argued, it was 'little more than conjecture to suggest that anything more than the 350 grams of heroin in the Hercules bag was actually processed in the flat.'

65 As to the second contention, if it be assumed that a quantity of heroin was pressed and/or sealed in the flat, it was nonetheless submitted that the jury could not have been satisfied beyond reasonable doubt that the applicant had physically carried out the pressing and/or the sealing (as opposed to having simply been complicit in such activity). All that was known was that the applicant had access to the flat and had likely touched items found in the flat that were connected with the preparation of the drug (most importantly the Hercules bag). It was submitted that the flat was only under observation for a very brief time prior to 21 November 2013, and for two days of that period - 18 and 19 November 2013 - nothing was known about who might have come and gone from the flat, how long they spent there and what they may have done. The period during which it was known that the applicant was at the flat was relatively confined, and was unlikely to have been a time sufficient for the applicant to have produced all the heroin found in the storage unit.

66 The applicant submitted that, at best (or, perhaps, worst), the prosecution could prove only that the applicant was complicit in trafficking heroin - the actual act of trafficking having been committed by Chinh or some other unidentified principal - in the amount found in the Hercules bag. Evidence in the case established a 'heroin connection' between the applicant and persons known (for example, Chinh and Duc) and unknown. Thus, for example, the applicant was arrested at the Elizabeth Street, Richmond, address, which were premises at which heroin was found and to which Chinh had a key. Further, Duc's connection with the heroin in the storage unit is 'inescapable'. Duc must also be seen to have been connected with other drugs found in the storage unit (drugs that were unrelated to the applicant). Hence, so it was argued, it must be assumed that a sizable proportion of the material found in the storage unit emanated from locations other than the flat.

67 It was submitted that the surveillance camera footage showed that a number of unidentified males had an interest in the Holland Court flat. Those unknown males were shown into the flat by the applicant on 16, 17 and 20 November 2013. It was not known whether the applicant had sole access to the flat by means of a key.

68 The applicant argued that it is 'not unreasonable' to suggest that the heroin press and heat-sealer are likely to have been used to process heroin at a point prior to the point at which those two items must at the latest (that is, 18 and 19 November 2013) have been placed in the flat by persons known and unknown and who had a connection with heroin. If drugs other than those allegedly associated with the applicant and the flat were placed in the unit by Duc, it is reasonable to suggest that he placed heroin in the storage unit, in particular, heroin that was earlier processed by the press and heat-sealer prior to 18 and 19 November 2013.

69 It was submitted that, from what was known, it was 'reasonably sustainable' on the evidence to suggest that the Holland Court flat was marked out by others as a heroin processing station in which those others - and those others alone - could physically press and seal heroin. Those others were then shown the flat by the applicant on 16 and 17 November 2013, at a point in time prior to the flat's conversion into a processing station. The flat was then approved for its intended heroin purpose. Thus, on 18 and 19 November 2013 the flat was cleaned out of all normal household items and on those two days all implements necessary for the pressing and sealing of heroin were installed in the flat (including the heroin press and the heat-sealer). Once the conversion of the flat was in place, those who were responsible physically for undertaking the process of pressing and sealing heroin in the flat commenced carrying out that operation. Given that it could not be proven that the applicant had the only key to the flat it was 'not unreasonable' to suggest that these others might have accessed the flat for this purpose over the 18 and 19 November 2013 period. (Indeed, the applicant said in his record of interview with police that Chinh had his key to the flat over that period.) Then, on 20 November 2013, the applicant attended the flat and handled the Hercules bag, which contained product of the previous two days of production.

70 Finally, it was submitted that each of the above contentions was 'entirely and reasonably sustainable given what was known'. It was acknowledged that acceptance of the putative reasonable hypothesis consistent with innocence would arguably leave the applicant complicit (rather than acting as a principal) in the production of heroin in an amount that was far less than a large commercial quantity. Assuming that this was so, it was submitted that the prosecution case at its highest could establish nothing more. It was contended that the prosecution case could not, without 'branching into the realm of pure speculation', establish beyond reasonable doubt that the applicant had actually - in the sense of physically - pressed and/or sealed the heroin found in the storage unit either in total or in an amount that was not less than a large commercial quantity.

The verdict on charge 1 is not unsafe and unsatisfactory

71 In our opinion, the applicant's contention that the verdict on charge 1 is unsafe and unsatisfactory cannot be accepted. Having regard to the whole of the evidence, it was well open to the jury to be satisfied to the criminal standard that the applicant was the principal offender in relation to the trafficking alleged in the first charge on the indictment.

72 Turning first to the Holland Court flat, there are, in our view, several factors which compel the conclusion that the flat was used almost exclusively to compress and package heroin for sale. First, the flat essentially was empty, containing little furniture. There was no fridge and no food, and no indication that anybody lived there. Secondly, a significant portion of the heroin found at the storage unit was pressed with the heroin press found at Holland Court on 21 November 2013. Thirdly, a significant quantity of the heroin found at the storage unit was packaged using the white heat-sealer observed at Holland Court on 21 November 2013 and seized from the storage unit on 16 December 2013.

73 Next, the evidence showed the applicant to have a close connection to the flat in the period immediately preceding his arrest. Thus, he was at the flat on 16 November 2013 (for an hour and 28 minutes); on 17 November 2013 (for an hour and 18 minutes); and on 20 November 2013 (for a period of 13 minutes). He admitted himself with a key and also admitted others. In his record of interview of 22 November 2013, the applicant said that Chinh had the key to the flat for about three days, and had returned it to the applicant on Tuesday, 19 November 2013, at about 2.00 pm. Additionally, in the record of interview the applicant confirmed that the Holland Court flat had been used to prepare heroin (albeit he denied any involvement in that activity). He told police that the furniture inside the flat had been moved out three months earlier. The applicant stated that he had seen Chinh using the heroin press at Holland Court. He said that he saw Chinh pressing heroin three days previously. It seems that he also confirmed that there was packaging and heat-sealing occurring, although he denied any involvement in it.

74 Furthermore, in our opinion the evidence compels the inference that the heroin found in the storage unit had been packaged by the applicant at the Holland Court flat. There are several complementary aspects of the evidence which lead to that conclusion. First, forensic evidence established that the heroin found at the storage unit inside the brown carton with Asian characters on it had been pressed with the heroin press located at Holland Court. That evidence supports the conclusion that the heroin found inside the carton in the storage unit had been pressed and packaged at Holland Court.

75 Secondly, all of the heroin inside the brown carton - 4.813 kilograms - was separate from other drugs located elsewhere in the storage unit.

76 Thirdly, the Hercules bag - upon which two of the applicant's fingerprints were found - was inside the brown carton. This bag contained 348.9 grams of heroin. Further and very significantly, the Hercules bag contained a 'FoodSaver' vacuum sealed bag that had been sealed with the heat-seal machine observed by police at Holland Court on 21 November 2013 and found in the storage unit on 16 December 2013. Thus, the circumstances attaching to the Hercules bag provide a strong foundation for the inference that the applicant had been involved in packaging the heroin found in the storage unit, by using the press and the heat-sealer located at the flat.

77 Fourthly, a significant proportion of the 4.813 kilograms of heroin found inside the brown carton had been compressed into highly distinctive discs, and many of those discs had been pressed using the heroin press found in the flat on 21 November 2013. Additionally, all of the compressed discs weighed about 350 grams, which would suggest that some care had been taken to produce discs of uniform size.

78 Fifthly, the Hercules bag - having the applicant's fingerprints on it, containing the FoodSaver bag sealed with the heat-sealer and containing heroin pressed using the heroin press located at the Holland Court flat - was found in the brown carton together with other heroin, much of which had a common connection to the heat-seal machine and the heroin press.

79 In considering the ground of appeal touching conviction, we are required to carry out our own independent assessment of the evidence. Having done so, we are in no doubt that it was well open to the jury to convict the applicant.[11] When the various items of circumstantial evidence are considered as a whole, in our view they paint a compelling picture which vividly illustrates the applicant's guilt. Certainly, for the reasons we have endeavoured to explain, we entertain no doubt as to his guilt.[12]

80 Leave to appeal against conviction must be refused.

81 It will be remembered that the ground of appeal relating to sentence complains that the sentencing judge erred 'in sentencing the applicant on the basis that he had trafficked in 4 kilograms of heroin'. That complaint must be rejected.

82 On the plea, counsel for the applicant submitted that it was not open for the judge to interpret the jury's verdict as requiring that the applicant had trafficked in any amount greater than one kilogram of heroin, which is the threshold amount for a large commercial quantity.[13] This submission was challenged by the prosecution. Ultimately, the judge found that the applicant had trafficked four kilograms of heroin.

83 In large part, in support of the sentence application, counsel for the applicant repeated the submissions in the course of the conviction application. Thus, it was submitted that it was speculative to suggest that the applicant had - as the judge found - physically pressed and sealed virtually the entirety of the heroin located in the storage unit. It could not be assumed, so it was submitted, that the heroin press and heat-sealer had been installed in the flat at any point prior to 18 November 2013. In these circumstances, it could not safely be inferred that the applicant had processed any more than the bare minimum referable to that particular statutorily prescribed amount. There was at least a reasonable possibility that a good proportion of the heroin in the storage unit had been pressed and sealed at an earlier time and at another location prior to when it could confidently be said that the flat commenced operation as a processing station. If this was so, then it could not be assumed that the applicant had any hand in the pressing and sealing of this earlier processed heroin. Given that the culpability of a drug offender is measured, in significant part, by the quantity of the drug in which he or she deals, an error tantamount to ascribing four times the amount of a drug to the volume of alleged trafficking must be seen to be error of a material kind.

84 As we have indicated, the applicant's submissions cannot be accepted. In our view, it was open to the judge to conclude that the applicant had been involved in the trafficking of four kilograms of heroin. Indeed, it seems to us that the judge's analysis of the evidence is beyond criticism. In her sentencing remarks, she observed:

Upon an analysis of the evidence led by the prosecution during the course of this trial, I am satisfied beyond reasonable doubt that the jury's verdict reflected your involvement in at least four kilograms of heroin and is not limited to [one kilogram]. The jury's verdict reflects the jury was satisfied beyond reasonable doubt that you trafficked in at least a kilogram of heroin. The evidence relied on by the prosecution is such that as to at least four kilograms of heroin, the evidence led links each of the particular quantities of heroin to the Holland Court flat, in particular from the links with the heroin press [and] the white heat seal machine.

If a jury could have been satisfied beyond reasonable doubt it went from the Holland Court flat to the [storage] unit, and in my view whether it was or not does not detract from my finding that the link is with the Holland Court flat from the heroin press alone. Also, the relationship or the similarities between each quantity of heroin located in the brown carton in the unit in the Cole & Bright box and under the Louis Vuitton bag. ...

First, the 2.105 kilograms is the weight of six disks of compressed heroin mix located in three sealed plastic bags. Each bag was sealed by the white heat seal machine in the unit. Each bag contained disks Sergeant Olinder said were pressed by the heroin press located in Holland Court. Each disk had a similar weight, 350.7 grams, 349.6 grams, 351.7 grams, 352.2 grams, 350.3 grams, 351.8 grams, and also each had the same percentage of purity: 58.7 [per cent]. So I take into account the combination of those matters of the similarity of all of them.

Two, as to the fragments of heroin mix, Sergeant Olinder said he could not conclude each fragment was pressed by the heroin press that was located in the Holland Court flat as there was in some of those disks insufficient surface and therefore not enough detail for him to be satisfied.

A number of fragments of disks of compressed heroin mix were located in various sealed plastic bags. Each bag to which I will refer contained a number of fragments and each bag contained some fragments pressed by the heroin press, which was the opinion of Sergeant Olinder and his opinion was that each of the intact disks were pressed by the heroin press and the weights of these - I am referring to numbers given by the Australian Federal Police and the Victoria Police in terms of the forensic numbers to identify each item - so each of these bags as I said contained a number of fragments, and in each bag there were fragments linked to the heroin press: 349.6 grams, no. 5/4/1; 350.9 - and that number of that bag is 5/4/2; 348.9 grams, the bag number was 5/5/1; 294.1 grams in bag given the number 5/5/2. Each bag to which I have referred - each of those four bags - was sealed with the white heat seal machine. Each fragment had the same purity as each other and as the intact disks: 58.7 per cent.

Also in the bag 5/5/1 was ... the Hercules bag in which fragments were located, your left middle finger and right little finger fingerprint was located. The Louis Vuitton bag that has been referred to included a bag 5/8/5 containing a bag containing brown fragments which was also 58.7 per cent pure, and in that bag there was fragments pressed by use of the heroin press. So in 5/8/5, the brown fragments of heroin located in that bag, some of them were pressed by the heroin press; there is no link with that bag to the heat seal machine and the quantity of the brown fragments in that bag were 322.4 grams, and as I said, the contents of that bag were also 58.7 per cent pure.

Also there was the Louis Vuitton bag which was in the Cole & Bright box, the contents included two bags in 5/8/7, so that contained two bags each containing brown fragments of heroin, some of which were pressed by the heroin press, and the FoodSaver bag, one of the bags by the white heat seal machine. The purity was the same as the others to which I have referred, 58.7 per cent and the contents of that were 295 grams. The individual bags of heroin to which I have referred have the same purity. In each bag, there was heroin pressed by the heroin press and save for the bag numbered 5/8/5, the bag was sealed with the white heat seal machine located in the unit.

Upon an analysis of the evidence in the matters to which I have referred, the verdict of guilty to Charge 1 reflects the jury was satisfied that you trafficked in at least one kilogram. Given the matters to which I have referred and the connection between all the drugs located, I am satisfied beyond reasonable doubt it is appropriate to sentence you in relation to not less than four kilograms of heroin mix.

85 Plainly, the supposed error alleged in the ground of appeal was not made out.

86 For the foregoing reasons, the application for leave to appeal against sentence must be refused.

[1] Drugs, Poisons and Controlled Substances Act 1981, s 71. The maximum penalty is life imprisonment.

[2] Drugs, Poisons and Controlled Substances Act 1981, s 71AC. The maximum penalty is 15 years' imprisonment.

[3] Since he had a relevant prior conviction, the applicant was sentenced as a serious drug offender pursuant to s 6D of the Sentencing Act 1991. On 19 March 2001 the applicant had pleaded guilty to trafficking a large commercial quantity - 1.398 kilograms - of heroin. He was sentenced to be imprisoned for seven years, with a non-parole period of five years.

[4] Although Duc Nguyen and the applicant share the same surname, they are not blood relatives. They are akin to brothers-in-law, however, since their respective partners are sisters.

[5] Federal Agent Andrew Davies gave evidence that 'FoodSaver' is a brand. The bags are plastic, come in a roll and are designed for use with a vacuum heat-sealing machine. After contents are placed into the bag and the bag is put into the machine, the machine draws air out of the bag, then heat seals the bag.

[6] Federal Agent Andrew Davies gave evidence that a 'clip seal bag' is a plastic bag which can be closed and sealed by pressing across the top of the bag.

[7] The applicant was not charged in relation to a quantity of other drugs found in other cartons in the storage container, including 4.475 kilograms of meth-cathinone ('MDMC') inside a 'Country Road' brand camouflage duffle bag; 39.3 grams of ephedrine and 34.8 grams of cocaine (mix) found within the plain brown cardboard carton with Asian characters; and 29.5 grams of methamphetamine (mix) found within a ceramic coffee cup in a plastic bag inside the white styrene foam carton.

[8] For reasons beyond the control of police the Holland Court camera was not operative on Monday, 18 November, and Tuesday, 19 November 2013.

[9] The applicant was not charged in relation to this heroin.

[11] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 ('M'). See also Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113] (Hayne J) ('Libke'); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, 408 [20]-[21]; R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40]; Greensill v R [2012] VSCA 306; (2012) 37 VR 257, 276-7 [81]-[83]. See also R v Baden-Clay [2016] HCA 35, especially at [65]-[66].

[13] By virtue of Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981, a large commercial quantity of pure heroin is 750 grams, and a large commercial quantity of a mixture of substance and heroin is one kilogram. A commercial quantity of pure heroin is 250 grams, and a commercial quantity of a mixture of substance and heroin is 500 grams. Trafficking in a large commercial quantity attracts a maximum penalty of life imprisonment (s 71), whereas trafficking in a commercial quantity attracts a maximum penalty of 25 years' imprisonment.