Pham v Regina

Criminal Appeal Act 1912 - s 5F LEGISLATION CITED: Drug Misuse and Trafficking Act 1900 - s 21(2) Criminal Procedure Act 1986 - s 21 (2)

CASES CITED: R v Middis (unreported, SCNSW, 27/3/1991)

COUNSEL: G. Rowling - Crown A. Leary - Applicant

SOLICITORS: S. Kavanagh - Crown A. Bilias - Applicant

IN THE COURT OF CRIMINAL APPEAL 2005/2439

McCLELLAN CJ AT CL HOWIE J LATHAM J

MONDAY 23 JANUARY 2006 Cuong PHAM v Regina Judgment 1 HOWIE J: This is an application pursuant to section 5F of the Criminal Appeal Act 1912 for leave to appeal against an interlocutory judgment of Sorby DCJ refusing an application for a separate trial. The applicant is to stand trial together with his co-accused, Van Quyen Nguyen, upon a charge that they knowingly took part in the cultivation of a commercial quantity of cannabis plants contrary to the provisions of s 25(2) of the Drug Misuse and Trafficking Act 1900. 2 The application for a separate trial was made under s 21(2) of the Criminal Procedure Act 1986, on the basis that the Crown case against the applicant was substantially different in character from that of the case against his co-accused. It was further argued that, if the trial were to proceed as a joint trial, the applicant would suffer extreme prejudice and embarrassment which could not be remedied by any direction or warning to the jury. 3 The submissions filed on behalf of the applicant were supplemented in oral argument by Mr Leary. The submissions today go further than the submissions made to the trial judge and it is suggested that it would be unfair for the applicant to have to stand trial with the co-offender by reason of the fact that the case against the applicant is almost non-existent and that there is a very good chance, so it is said, that the applicant would receive a verdict by direction at the end of the Crown case and that it would be unfair for him to be placed in jeopardy of a conviction because of the evidence against the co-offender that was not admissible against the applicant. 4 The charge arises from the cultivation of 414 cannabis plants grown hydroponically at 233 River Road Revesby. The premises at that address are a single story brick house with four bedrooms, a living room, kitchen, dining room and a detached rear garage. The plants were grown in the bedrooms. In the dining room 36 electrical transformers were stacked and wired to each of the bedrooms. A number of cooling fans were aimed towards these transformers. 5 During January 2005 police commenced investigations into the cannabis being grown in the premises. The police were granted a search warrant for the premises on 8 February 2005. The next day at 5.20pm the police were conducting surveillance of the premises when a vehicle arrived with two male occupants. The police sought entry into the premises, announcing who they were, but the occupants refused to open the front door. Shortly after, the applicant ran from the rear door into the yard and climbed the rear fence. He was arrested in the premises at the rear of 233 River Road. The second male evaded police and could not be identified. 6 In the lounge room of the premises police located a wallet in the pocket of a pair of jeans draped on a bed. The wallet contained the applicant's driver's licence. DNA matching that of the applicant was detected on a Coca Cola can in the kitchen. There is no direct evidence that the applicant had attended the premises prior to the date of his arrest, however the Crown alleges that the presence of the applicant's wallet and DNA within the premises indicate that this was not the first time he had been there. 7 The case against the co-accused is supported by surveillance evidence of the premises over the period 1 February to 9 February 2005. On 1 February police began surveillance of the premises at 12.05pm. A green Honda Accord was parked in the front yard. At 12.25pm a male was seen to exit the premises and drive off in this vehicle. On 2 February at 12.00pm the same vehicle was seen parked in the front yard and a male entered the premises. At about 7.20pm that same person opened the side gate to allow a black Commodore entry into the back yard. Nguyen later identified himself as the person photographed carrying out this activity.

8 At 9.30pm the Commodore and the Honda both left the premises. On this occasion the Honda was kept under police surveillance and, when later stopped by police, the driver was identified as the applicant's co-offender, Nguyen. On 3 February at 10am Nguyen again attended the premises where he was seen to wheel a rubbish bin from the front yard into the back yard, locking a side gate behind him. When later interviewed by the police, Nguyen stated that he was the only person who drove the Honda. 9 The Crown case against both the applicant and his co-accused is circumstantial. With respect to the applicant, the Crown relies upon his flight from the premises on 9 February and the finding of objects in the premises connected to him. With respect to Nguyen, the Crown is relying on the surveillance evidence that places him at the premises on 1st, 2nd and 3rd of February 2005. The Crown is not alleging that Nguyen was the other male seen at the premises at the time of the arrest of the applicant. It is the Crown case that Nguyen was at the premises to tend to the plants. 10 In R v Middis (unreported, SCNSW, 27/3/1991) Hunt J identified three circumstances in which a separate trial will usually be ordered as being:

( 1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and

(2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and

(3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material. The applicant submits that those three circumstances are present in the current application and entitle him to a separate trial.

11 I am prepared to accept that the Crown case against the applicant is not as strong as that against his co-accused. I am also prepared to accept that the evidence against the applicant and Nguyen is different and none of the evidence implicating Nguyen is admissible against the applicant. But none of the evidence implicating Nguyen implicates the applicant. For example, Nguyen made a recorded interview with police but there is nothing in that which amounts to admissions by Nguyen and there is nothing said by him that has any relevance to the Crown case against the applicant. As I understand it, there is no evidence against Nguyen that could possibly operate to the prejudice of the applicant thus making the Crown case against the applicant stronger. 12 I do not understand that there is any evidence to connect Nguyen and the applicant in any way whatsoever let alone in respect of the premises or the cannabis plants. There is no line of reasoning whereby even irrationally a jury could argue that because Nguyen is guilty so must the applicant be guilty. The cases are quite independent and there is no risk that the jury could use the evidence in the case against one accused when considering the case against the other accused even if the judge failed to warn them against such a course. 13 Judge Sorby refused the application for a separate trial. That was a discretionary judgment. Not only has it not been shown that his Honour erred in coming to that view, in my opinion he was correct to refuse the application. 14 I propose that the application for leave to appeal be refused. 15 However, it is arguable that the case against Pham is equally strong as the case against Nguyen. The presence of the wallet and spare pair of jeans draped on a bed and the DNA traces on the coke can strongly suggest that Pham had been to the premises previously. Although Nguyen was seen at the premises on three separate occasions, including one where it is inferred that he remained at the premises for over nine hours, he was not placed at the premises on the day of the arrest of Pham. Furthermore, both Pham and Nguyen are in the similar position of not being the owner of the premises. 16 None of the evidence in the present case is of a highly prejudicial nature. This case is to be contrasted with that of R v Hutchison where there were conflicting versions of relevant events by various witnesses and co-accused which had the effect of diminishing the credibility of the applicant and a key favourable witness of the applicant. 17 There is some risk that the evidence against the co-accused will be unfairly used against the accused Pham thereby strengthening the Crown case. However this risk is always present, and can be cured by a direction by the judge. In the present case the evidence, although circumstantial, is of a fairly simple and discreet nature, and should not pose too much difficulty for a jury to process properly.

18 As I can see no reason why the accused Pham would not received a fair trial if tried jointly with Nguyen, I would refuse the application by Pham for a separate trial. There is no basis to ensure fairness or otherwise for the application to succeed. I propose that the application for leave to appeal be refused. 19 McCLELLAN CJ at CL: I agree with Howie J. 20 LATHAM J: I agree. 21 McCLELLAN CJ at CL: The order of the court is the application is refused.

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