R v Duong

Court of Criminal Appeal (NSW)|2003-03-07|Before: Giles JA, Dunford J, Smart AJ

CITATION : R v Duong [2003] NSWCCA 55 revised - 10/03/2003 HEARING DATE(S) : 7 March 2003 JUDGMENT DATE : 7 March 2003

JUDGMENT OF : Giles JA at 1; Dunford J at 25; Smart AJ at 26 DECISION : Appeal dismissed.

LOWER COURT District Court JURISDICTION : LOWER COURT DC 02/21/3071 FILE NUMBER(S) : LOWER COURT Morgan DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60258/02 DC 01/21/3071

GILES JA DUNFORD J SMART AJ

Friday 7 March 2003 R v Thi Hong Hanh DUONG Judgment 1 GILES JA: The appellant was found guilty on a charge that on 29 June 2000 at Hinchinbrook in New South Wales she - " … did supply a prohibited drug, namely 9.3 gms of heroin, in that she did have in her possession an amount of that drug which was not less than the trafficable quantity applicable for that drug."

The offence was one of deemed supply by reason of possession of the heroin, see Drug Misuse and Trafficking Act 1985, ss 25(1) and 29. 2 The appellant was sentenced to imprisonment for 3 years with a non-parole period of 15 months. This is an appeal against conviction. There was no application for leave to appeal against sentence 3 On 29 June 2000 a search warrant was executed at a house at Hinchinbrook. A red envelope containing heroin was found in a drawer in the tallboy in the appellant's bedroom. The issue at the trial was whether the Crown had established that the heroin was in the appellant's possession. The grounds of appeal were -

(a) that the trial judge's directions on the element of possession were inadequate in that her Honour failed to direct the jury that the Crown had to negative the possibility that the drugs were in the possession of someone other than the appellant; and

(b) that there has been a miscarriage of justice in that it was not, upon the whole of the evidence, open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. 4 The oral evidence in the Crown case was that of police officers who had executed the search warrant and later conducted a formal interview of the appellant. There were tendered a video of the search of the house, the envelopes found in the drawer of the tallboy, an analyst's certificate, a the video of the interview and a transcript from the video. The appellant did not give evidence. 5 The appellant had lived at the Hinchinbrook house for about two years. She lived there with her three children, her mother and two brothers. Save that one was described as a baby, the ages of the children were not stated. Nor were the ages of the brothers stated, but it may be assumed that they were mature. 6 In the search of the appellant's bedroom one of the police officers found the red envelope in the drawer of the tallboy. It contained a clear plastic resealable bag with white powder, later weighed and analysed, being the 9.3 gms of heroin. The heroin had a value between $2,000 and $3,000. Also in the drawer were 11 identical envelopes, empty, held by an elastic band, and what were described as "personal items, numerous bits and pieces". They included a box or tin containing coins. 7 The plastic bag was tested for finger prints. No finger prints were found. 8 The transcript of the interview included - "Q230 O.K. Just one last question. This red envelope, do you agree that you told me that you got that Chinese new year where it was, it was given to you?

A. Yeah, I got whole, all whole, whole bag, just tied it up.

A Yeah, about 11, 12, but I didn't check it yet, but it's from long time ago, I don't, like, I didn't open it up.

Q232 And when did you get that? A On Chinese new years.

A And it was some money in there too, but … like, when opened up ……………there's no money in there." 9 It is not clear what envelope the questioner asked about, but the answer referred at least to the 11 envelopes. 10 The search of the house was on a Thursday. In the interview the appellant was asked about the last time any other person was in her bedroom. She said that it was her friend Linda Nguyen, who had stayed at the house the previous week and had left on the Monday. Ms Nguyen had brought some marijuana, some of which the appellant and Ms Nguyen had smoked. When Ms Nguyen left she took some of the appellant's clothes and left some marijuana. The appellant had smoked some of the marijuana on the day before the search of the house, the Wednesday. Some marijuana was found in a chest of drawers, not the tallboy, in the bedroom. 11 During the search the appellant went to the drawer in the tallboy to get some money from the coin box for her son. In the interview she said that she had last looked in the tallboy about three days earlier, that is, about on the Monday - " … but I just look in it, like, it's open, I just look, but like, I didn't like, open up and look, like, because I think it was, I don't need to find anything in that, that's why I don't like, to like, to open up or something like that. I open, I just close it up." 12 Both at the time of the search and in the interview the appellant denied any knowledge of the white powder. 13 The appellant said that she had been at the house on the Wednesday but had stayed away with another friend "two days" ago. She said she left her room open. 14 Although the appellant provided the police with an address for Ms Nguyen, so far as appeared the police had not contacted her.

Directions 15 The appellant submitted that the evidence left open that the heroin was in the possession of someone other than the appellant, possibly her mother or brothers and of greater possibility Ms Nguyen. Ms Nguyen had been at the house for a week, with access to the tallboy perhaps including while the appellant was away on the Monday. Ms Nguyen had left while the appellant was not there. The appellant submitted that it was necessary for the trial judge to direct the jury that the Crown had to negative the possibility of someone else's possession before she could be convicted, and that her Honour did not emphasise to the jury that it was necessary to exclude the possibility of possession by Ms Nguyen or the others who lived in the house. She added that the trial judge had, with the concurrence of counsel, given a Jones v Dunkel direction against the Crown in relation to Ms Nguyen, and that this was something which may well have distracted the jury from the issue whether the heroin may have been in the possession of Ms Nguyen. 16 The appellant relied on R v Filipetti (1983) 13 A Crim R 335; R v Anderson (CCA, 15 December 1983, unreported); R v Bazley (CCA, 23 March 1989, unreported) and R v Sobolewski (CCA, 21 April 1998, unreported). In particular we were taken to passages in R v Anderson. In that case the drugs were found in a flat to which a number of people had access. It was said that it was necessary, in a case where there could be the possibility of more than one person being involved in the possession of the article in question, "that there be an emphasis placed upon the necessity of the Crown establishing the element of exclusivity in the custody and control of the article in question", and reference was made to R v Filipetti. It was said that it was necessary for the trial judge when dealing with the element of possession "to put clearly before the jury the element of exclusivity in order to identify the appellant as the person having possession of the heroin for the purposes of the Crown establishing guilt in the present circumstances." The trial judge had not only not emphasized, but had not even mentioned, the element of exclusivity. 17 The cases on which the appellant relied attest to the need, where there is a possibility that persons other than the accused could have possession of the goods in question, for the Crown to prove that the accused had possession to the exclusion of the other persons, and for that to be made clear to the jury. They do not call for a direction in the terms suggested in all cases. The adequacy of directions depends upon the particular circumstances and the issue for the jury. In R v Trotter [1999] NSWCCA 90, to which the Crown's submissions drew our attention, a direction which did not specifically emphasize what the appellant's submissions said had to be emphasized was upheld. It is necessary to look to the directions given in the present case. 18 The trial judge fully directed the jury as to possession. The directions included - "In order to possess something, a person does not have to own it. What is necessary is that the person must knowingly have that something in their possession and their physical custody or at some place under their control. They must have the intention and the ability to exercise control and dominion over it to the exclusion of all persons other than those acting in concert with that person . And knowingly in this context is meant that the accused knew either of the existence or the likely existence of the heroin in that envelope in her drawer. You cannot possess something that you do not know exists. And in this case of course it has been submitted on behalf of the accused as she said to the police in her interview and when she was first spoken to about it in her bedroom that she knew nothing about it. It was not her drugs at all. So a person must have the property either in their manual possession, that is in their hand or in a place to which that person may go without physical bar in order to obtain such manual possession of it and the meaning of the word 'possession' at law is wide enough to include any case where the person alleged to be in possession of a prohibited drug has hidden the thing effectively so that that person can take it into their physical custody when they wish to do so and where others are unlikely to discover it except by accident. … That ladies and gentlemen are [sic] the matters which must be proved and proved beyond reasonable doubt by the Crown. As I say, the issue here for you is whether indeed the accused was in possession of that drug in the way in which I have described to you. Whether indeed it was in her physical custody or at some place under her control and that she knew it was there. That is, she knew of the existence or the likely existence in that envelope of the prohibited drug, that is of the heroin. And I remind you that if you do not know something is there, you cannot be said at law to possess something, be in possession of anything." (emphasis added) 19 Her Honour gave a detailed summary of the evidence, of which no complaint was made in the appeal, including concerning Ms Nguyen's staying in the house. Her Honour's reminder to the jury of the address of counsel for the appellant included - "She had been forthright with the police regarding the marijuana and she was forthright about the person who had also been in that room a few days earlier who had a direct contact with drugs, because Linda was the person who brought the marijuana along to - for this accused to smoke and as she told the police in her interview, that it was the first time that she had ever used a drug, that drug marijuana was when Linda had brought it. So far from the accused having contact with drugs, the evidence from - the material from the interview points to the fact that the person who had contact with drugs was this person, Linda whom the police neglected to do anything about. He said that that must raise in your mind grave doubts about whether the accused had the heroin in her possession as must be proved beyond reasonable doubt by the Crown. And accordingly, that having regard to her responses to the police both in her room and in the interview, you would not be satisfied beyond reasonable doubt that the Crown had proved the case beyond reasonable doubt and accordingly you would acquit the accused. You could not find any other verdict than that of not guilty." 20 Her Honour also fully directed the jury more than once as to the Crown's burden of proof and the need for proof beyond reasonable doubt. In these circumstances and given the nature of the evidence and the issue at the trial, the jury can have been in no doubt that it was necessary that they be satisfied beyond reasonable doubt that the heroin was in the possession of the appellant to the exclusion of possession by Ms Nguyen or others who lived in the house. The direction did make specific reference to exclusivity, although it was really not exclusivity which was in question so much as the appellant's possession at all. 21 The trial judge was not asked to correct or add to the directions, and leave is required to rely on this ground. I do not dispose of the appeal on that basis. As I have said, the adequacy of directions depends on the particular circumstances, and in this case I consider that they were adequate. I do not think that the Jones v Dunkel direction had the potential to distract the jury in the manner suggested, or that any further reference was required to the need to exclude the possibility of possession of Ms Nguyen or the others who lived in the house.

Miscarriage of justice 22 The question for this Court is that explained in M v The Queen (1994) 181 CLR 207. I do not think elaborate discussion is necessary. 23 The heroin was in the appellant's room, in a drawer of her tallboy together with personal items. It was in an envelope identical with a number of envelopes which the appellant acknowledged were hers. (On one view the appellant acknowledged that the envelope with the heroin had been given to her at Chinese New Year, but it is not necessary to got that far.) The appellant's essential case at the trial was that there was a reasonable doubt because Ms Nguyen might have left the heroin in the drawer, in the envelope, unknown to the appellant, with of course the suggestion that others in the house might have done so. The jury was entitled to be dismissive of those suggestions. On the whole of the evidence, in my opinion it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. 24 Accordingly, I propose that the appeal be dismissed. 25 DUNFORD J: I agree. 26 SMART AJ: I also agree. 27 GILES JA: That will be the order of the court. **********

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