R v Dao [2005] VSCA 196

"1. The Learned Trial Judge erred in that he failed to put the defence case in his charge to the jury sufficiently or at all.

2. The Learned Trial Judge erred in his directions to the jury in that he failed to summarise and remind the jury of the evidence in the case of both Crown and Defence but in particular the evidence given by and on behalf of the Applicant as well as the cross-examination by the Applicant's counsel of the prosecution witnesses.

3. The Learned Trial Judge erred in that in his charge to the jury he failed to summarise sufficiently or at all the arguments put in aid of the defence case.

4. The Learned Trial Judge erred in his directions to the jury in not explaining to the jury how the relevant law applied to the facts of the case.

5. The Learned Trial Judge erred in that he gave insufficient directions to the jury on the effect in the case of the Applicant's evidence and on the method or approach to be taken in the evaluation of that evidence."

3 The trial was conducted before his Honour Judge Hart over eight-and-a-half days. [1] On the ninth day, commencing at about 2.20 pm, counsel for the Crown and for defence addressed the jury. At the commencement the tenth day his Honour commenced his charge, and at 10.53 am the jury retired to consider its verdict. The jury had certain questions regarding the evidence and, having received answers, they retired again at 12.46 pm. The verdict of guilty was returned at 2.17 pm.

4 It will be seen from this brief summary that the closing stages of the trial were completed in a remarkably short time. In terms of the transcript, the final address of the prosecutor occupied 15 pages and that of counsel for the accused 16 pages. His Honour's charge until the jury first retired occupied 22 pages.

5 It is the charge which is the subject of complaint. For 20 pages the trial judge gave to the jury directions of law including a comprehensive direction as to how they might approach the extensive evidence of intercepts of telephone conversations which were conducted in the Vietnamese language and which, the Crown contended, were in code. Having given these directions, his Honour expressed himself in this way:

"Now what I am about to say to you is not intended to be an analysis of the evidence in this case, nor is it to be taken as suggesting that any particular result to you, but I am going to do this just to give an example of the sort of issues which arise for your consideration."

6 Towards the end of the charge his Honour dealt with the evidence and contentions of the parties in these terms:

"Members of the jury, I am not going to summarise the evidence that has been given in this case. It seems to me to be unnecessary. Counsel have summarised it for you. They have taken you through those parts upon which they rely. It is in short compass although it has been spread out over a few days. And it seems to me that it is unnecessary for me to summarise it for you.

However, should you wish to be reminded of the evidence that any person gave or any part of it, you have only to ask and I can do that by reference to the transcript of the evidence that was given, but unless you ask me to I do not think it is necessary for me to go through that evidence in any summary form for you.

Similarly, I am not going to endeavour to encapsulate or, you know, encapsulate the respective cases that have been put by counsel. You have heard from then, recently as yesterday, their experienced and competent counsel, if I were to endeavour to précis or encapsulate the cases that they put, they would almost inevitably not do them justice. I commend to you the cases that each of them put in full and I am not going to attempt an imperfect summary of it."

7 In response to his Honour's enquiry, counsel informed the Court that there were no exceptions.

The Trial

8 The charge against the applicant was laid following an investigation into the drug trafficking activities of three persons who lived at 17 Beverley Street, St Albans: William Do, his wife Jenny Williamson and his son Quan Manh Nguyen. In the course of the investigation, telephone calls were intercepted which led to the charging of two more persons, Van Thi Nguyen and the applicant. In the event, each of these, except the applicant, pleaded guilty to one count of trafficking in heroin although the dates in the counts varied within the period commencing 9 November 2000 and 22 March 2001. The presentment against the applicant alleged trafficking in heroin between 22 November 2000 and 11 March 2001. The applicant at all times denied the charge and, at his trial, gave sworn evidence to that effect.

9 At the commencement of the evidence, the jury was provided, as Exhibit A, with a bundle of translated transcripts of telephone conversations intercepted between 1 December 2000 and 11 March 2001. It was agreed that these transcripts were accurate in the sense that the persons engaged in the conversations were correctly identified, that the dates and times of the calls were correct and that the translations were accurate. We have not counted the number of pages in this exhibit but it appears to be of the order of 150. In all of them, or nearly all, the applicant was a participant. There is in the transcript of these intercepts no mention of drugs; the Crown case was that the participants were using code.

10 The evidence of the Crown witnesses was short and of small compass. It was not really challenged on behalf of the applicant. Essentially, it was that an undercover agent, who gave his name as Donald Golding, made purchases of heroin from Do and Quan on 9 November, 14 November, 22 November 1 December and 6 December at the Beverley Street address.

11 There were, too, five police surveillance officers who spoke of their observations on 22 November and 6 December 2000. The jury was provided, as Exhibits D and E, with summaries of that surveillance evidence on those two dates. Finally, there was the evidence of Detective Senior Constable Rainey who spoke of attending the home of the applicant at Sunshine North on 2 July 2001 and there seizing his mobile phone sim card. This witness also gave what appeared to be uncontradicted formal evidence of certain matters such as the analysis of the material purchased by the undercover agent and he produced the tapes of the records of interview of the applicant both on 2 July 2001. The applicant, as I have mentioned, denied any involvement in the trafficking.

12 The Crown case was then closed on the fifth day. In all, the Crown evidence occupied some 38 pages plus 60 pages of the evidence of the Vietnamese interpreter in relation to the telephone intercepts. The relatively few pages of transcript, however, belies the fact that a considerable time was occupied in reading aloud to the jury the transcript of the telephone intercepts.

13 A very significant part of the Crown case related to the events of 6 December 2000 when the undercover witness spoke of making two purchases of heroin from Quan. The surveillance witnesses observed his movements and those of the applicant and Do and the telephone intercepts which recorded seven conversations involving the applicant. Moreover, the significance of this evidence would easily be apparent to the jury if they were to recall the evidence of the undercover witness that he made a purchase at Beverley Street from Quan at 11.20 am, that he telephoned Quan for some more heroin at 11.58 am and took delivery at Beverley Street at 3.05 pm on the same day, together with the summary of surveillance evidence, Exhibit D, and the seven pages of telephone intercept transcripts of the same day. Without some explanation, this evidence strongly suggests that, following the request by the undercover witness prior to 11.20 am and his payment to Quan of $6,000 at 11.20 am, Do called the applicant saying "I'll go over for a big one, right" and saying that he would be there in 10 minutes to collect it. At 11.29 the applicant instructed Do to go, not to the house, but to the factory. The reference to the factory was identified in the chart given to the jury as Exhibit C, as being an address at 30 Imperial Avenue, Sunshine North. There was no evidence of Do leaving Beverley Street. At 11.41 and 11.44 respectively, Quan and the applicant were seen to arrive at Imperial Avenue. At 11.52 am Quan left Imperial Avenue and at 11.58 Do delivered the drugs to the waiting undercover witness at Beverley Street. The events which follow the undercover witness's request for another ounce of heroin shortly after this are similarly consistent with the applicant delivering the drugs to Quan at Imperial Avenue and receiving the $6,000 payment at the car park of the Kealba Hotel.

14 The applicant gave evidence over five days and approximately 200 pages of transcript. He denied that he engaged in trafficking in heroin on 22 November, on 6 December or generally. He did not dispute the observations of the surveillance witnesses nor the telephone conversations. He maintained, for example, that the reference to the "big one" in the 6 December telephone conversation of about 11.20 am was a reference to his elder daughter who was then a little less than nine years old, who babysat Do's grandchildren. The applicant denied in cross-examination that he delivered heroin or received money on 6 December.

15 And so, when his Honour came to charge the jury, the issue was essentially one of the factual inference to be drawn from the undisputed evidence of the Crown witnesses, having regard to the explanations offered by the applicant in his evidence. And this inference was whether the applicant was, to the criminal standard, shown to have been involved in the admitted trafficking by the other three persons. His Honour directed the jury as to the law which they were obliged to apply and no complaint was made of this, at the time or upon appeal. His Honour pointed out to the jury, with examples, what were the positions of the parties. He reminded them of the good character of the applicant and of the burden of proof as it applied to a circumstantial case. It was contended on behalf of the prosecution that, in the circumstances of this case, the charge satisfied the minimal requirements of the law.

16 We turn now to the proposed grounds of appeal. The first ground alleges that the judge failed to put the defence case to the jury in his charge. We think there is no substance in this ground. It is clear to the jury from his Honour's charge what the defence was and how it was put.

17 The same may be said of the third ground, that the judge erred in failing to summarise sufficiently or at all the arguments put in aid of the defence case. These arguments can be shortly put and were shortly put by counsel on the afternoon before his Honour's charge. We are satisfied that the jury would have no doubt from his Honour's charge what it was that the defence was putting forward by way of defence.

18 Likewise we consider that there is no substance in the proposed fourth ground of appeal, namely, that the judge erred in not explaining to the jury how the relevant law applied to the facts of the case. It will be apparent from the summary given above that his Honour did explain how the relevant law applied in this case.

19 Ground 5, that the trial judge gave insufficient directions on the effect of the applicant's evidence and on the method or approach to be taken in evaluating that evidence, was not developed in argument and we think there is no substance in it.

20 The remaining proposed ground of appeal was founded upon the trial judge's failure to summarise the evidence in the course of his charge. It is true that his Honour did not do so. Such a failure which would ordinarily mean that the resultant conviction could not stand This is a matter to which we shall return. But this was no ordinary case. The evidence was of short compass and the issues clearly drawn. The exhibits before the jury contained, in effect, a summary of the oral evidence given, at least on behalf of the Crown. We note that no exception was taken to the charge. This may have been in deference to his Honour's known disposition not to summarise the evidence, but nevertheless, it would appear to us that the acquiescence of counsel in his Honour's charge cannot be ignored. We infer from this and from the manner in which counsel themselves dealt with the evidence that they shared his Honour's perception that the case was a straight-forward conflict of the inferences to be drawn from a simple matrix of fact - one which the jury would no difficulty in recalling, understanding and evaluating. In the rather unusual circumstances of this case we do not think that his Honour's failure on this occasion has led to a miscarriage of the trial. We would not wish to leave this matter without making some general observations on this topic.

21 The duty of a trial judge in charging a criminal jury arises from their respective roles at trial. In its most basic form, this duty requires the judge to define the legal principles necessary for the determination of the case and to communicate them to the jury in a manner which will assist them in carrying out their role. The role of the jury is, of course, to determine issues of fact and to apply the facts to the principles communicated to them so as to return a verdict. The judge, also, has an important role in assisting the jury in its fact-finding function. The judge in the charge must identify the issues and relate them to the evidence in the case;[2] the judge must direct the jury as to the manner in which they must or may or may not use certain evidence; the judge, in the appropriate case, must or may warn the jury to approach certain evidence with caution or not to act upon it without corroboration; and the judge in performing these tasks must do so in a fair and even-handed way. Finally, the judge must put the defence fairly to the jury so that upon their retirement to consider the verdict, they have a clear understanding of what is the position of the accused.[3]

22 It has been accepted, in this jurisdiction at least, that the proper performance of these tasks requires the judge, in any but the most straight-forward of cases, to remind the jury of the evidence which has been placed before them,[4] which is, after all, the material with which they must undertake their task, and to relate the facts and issues raised by counsel to the charges upon which they are required to return a verdict.[5] It will be recalled that, of all persons involved in a criminal trial, it is only the jury who do not have a transcript of this evidence. In these circumstances, such an even-handed summary, relating the evidence to the issues, will be of invaluable assistance to them. The importance of this judicial function has led Ormiston JA to deplore the practice of failing to provide a summary of evidence in these terms:

"It seems to be becoming increasingly frequent for judges in the County Court not to summarise the evidence, usually on the ground that the trial has been short and that the jury would therefore remember all that had been given in evidence. The present trial in fact took some six sitting days so that some of the evidence was given a week before the judge concluded his address to the jury. One should not assume that what a trained and experienced lawyer can recollect will be invariably the same as each member of the jury, without the same or any similar training, can recollect at the end of a trial."[6]

23 Any neglect on the part of a trial judge to provide this assistance to the jury brings about the very real risk that the whole trial process will have miscarried with the consequence that the trial may have to be repeated. Such a result is, obviously enough, likely to be serious, if not disastrous, for all concerned: the witnesses and victims must undergo a further unnecessary ordeal; the jurors' time and services have been wasted; the State's financial resources have been thrown away both in funding the trial and the appeal; and perhaps the accused might have been required to serve an unnecessary prison term if acquitted on the re-trial and, in any event, the accused must endure the stress of the retrial. This risk is a real one because the verdict will stand only where the appeal court can be satisfied that, notwithstanding the failure of the trial judge, the jury has been able to perform its functions as the due trial process requires.

24 We, too, would therefore add our voice to those who have lamented the practice adopted by some judges of failing in their charges to juries to provide a summary of the relevant evidence or of the arguments which counsel have offered to the jury in their final addresses. How a particular judge approaches this task in a particular case is essentially a matter for their own judgement, brought to bear with the benefit of long forensic experience in the light of the manner in which the case has been conducted by the prosecution and the defence. Nevertheless, however it be done, it must be done.

25 Returning to the present appeal, we have concluded that all of the proposed grounds of the appeal against conviction fail and, accordingly, the application for leave to appeal against conviction must be dismissed.

Appeal Against Sentence

26 The applicant was, as we have mentioned, sentenced to imprisonment for six-and-a-half years with a non-parole period of four-and-a-half years. The other four offenders who pleaded guilty received the following sentences:

• Quan Manh Nguyen - four-and-a-half years with a three year non-parole period.

• William Do - seven years with a five year non-parole period.

• Van Thi Nguyen - two years wholly suspended for two years.

• Jenny Williamson - three years nine months with a non-parole period of one year nine months.

The sentences of Quan and Do were imposed by a judge other than the trial judge for the applicant. On appeal the sentence of Do was reduced to four years six months with a non-parole period of two years six months and that of Quan to three years with a non-parole period of two years.

27 The proposed grounds of appeal against sentence are as follows:

"1. The sentence imposed by the Learned Sentencing Judge is manifestly excessive.

2. The Learned Sentencing Judge erred in finding as a fact that the amount of heroin trafficked by the Applicant was in the vicinity of one pound.

3. The Learned Sentencing Judge erred in taking into account evidence not given in the trial in the determination of the appropriate sentence namely the evidence of being the expressions of opinion by Detective Bunny in the depositions as to the amount of heroin trafficked.

28 It appears from the trial judge's sentencing remarks that Do and Williamson were married and that Quan was their son. They had an arrangement under which the applicant supplied them with heroin from time to time. The role of Van Thi Nguyen was to provide a safe house for Williamson to store heroin and money.

29 Having regard to the reduction in the sentences of Quan and Do, it is apparent that the sentence imposed upon the applicant is manifestly disproportionate in the light of his role as found by the sentencing judge. He was found to be a supplier to Do and Quan of heroin on a regular basis over the period in question. The sentencing judge was aware that Do and Quan had previously been sentenced and he referred to the circumstances of their sentence in his sentencing remarks. His Honour concluded that "in my view as their supplier of heroin, you stand on the rung above them, so to speak, in the hierarchy". Notwithstanding this and notwithstanding that Do had doubtless received some credit for pleading guilty, his Honour sentenced the applicant to a period of six-and-a-half years imprisonment, that is six months less than Do. Doubtless his Honour was impressed by the powerful character evidence offered on behalf of the applicant.

30 No criticism was addressed to his Honour's findings nor was any particular sentencing error pointed to. What was contended under proposed Ground 1 for was that the parity between his sentence and those of the co-offenders should be maintained.

31 We agree. Accordingly, to achieve this parity we would allow the appeal and reduce the sentence of the applicant from six years and six months to four years and would fix a non-parole period of two years and six months.

[1] 5, 6, 7 (half day) 10, 11, 12, 13, 14, 17 November 2003

[2] Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466, per Dixon, Williams, Webb, Fullagar, Kitto JJ; Anderson [1996] VICSC 17; [1996] 2 V.R. 663 at 667, per Winneke P., Brooking J.A. and Southwell A.J.A. concurring; Franks [1998] VSCA 100; [1999] 1 V.R. 518 at 524 [17], per Winneke P., Tadgell and Batt JJ.A. concurring.

[3] Wilkes and Briant [1965] VicRp 64; [1965] V.R. 475 at 478, per Winneke C.J. and at 479, per Smith J; N.J.M. [2001] V.S.C.A 235 at [2], per Charles J.A. and at [44] - [45], per Chernov J.A.

[4] Anderson [1996] VICSC 17; [1996] 2 V.R. 663 at 667, per Winneke P., Brooking J.A. and Southwell A.J.A. concurring; De'Zilwa [2002] VSCA 158; (2002) 5 V.R. 408 at 410 [4], per Ormiston, J.A., at 416 [26], per Charles J.A.

[5] De'Zilwa ibid.; Dardovska [2003] VSCA 4; (2003) 6 V.R. 628 at 633 [19], per Charles J.A., Phillips C.J. and O'Bryan A.J.A concurring; In Yusuf [2005] V.S.C.A. 69 at [15] (a case concerning the obligation on the charging judge imposed by Crimes Act 1958 s. 37) the failure was described as an irregularity.

[6] De'Zilwa [2002] VSCA 158; (2002) 5 V.R. 408 at 410 [4], per Ormiston, J.A.