R v Le Doan [2001] VSCA 142

R v Le Doan [2001] VSCA 142 - VSCA 2001 case summary — Zoe

[8]

During a record of interview with the police, the applicant said that she had known Nguyen for the past two years, that she and Nguyen had driven to Sydney the previous Friday and that they had returned to Melbourne on the day of their arrest. She said that the white van was hers. She said that on their return to Melbourne Nguyen said that they had to go to St. Albans, and in a street in that suburb Nguyen parked the van and walked away while she remained in the vehicle. When she asked Nguyen why they went to St. Albans, he told her that it was none of her business. She said that Nguyen came back with money and then added that Nguyen had returned to the vehicle with a plastic bag and she had asked him what it was. She said that Nguyen told her that it was none of her business. They then drove back to the factory at Yarraville where they were arrested. The applicant said that the blue travel bag was used by Nguyen to carry both his and her clothes. When asked if she had equal access to that blue bag, she stated that whenever she required any clothing, including when she had a shower, she asked Nguyen to get it for her. The applicant denied any knowledge of the cash or drugs found by the police. She admitted that she was a past user of heroin and would be able to identify heroin by tasting it. It was put to the applicant during questioning that a small black box next to the scales on the bathroom shelf in the factory contained a syringe and she was asked whose syringe it was. She replied, "It used to be mine". When asked if she had seen the scales which were next to the syringe, the applicant said, "I haven't touched - like, since I get on the methadone". She stated that she had been on methadone for almost four weeks. She also said that she had previously obtained heroin in Footscray, and that sometimes Nguyen obtained it for her. Evidence of the police witnesses who arrested the applicant was that the yellow plastic bag next to the applicant in the front seat of the van was open, beside her, and that when they looked across the applicant they could see money inside it.

[36]

The facts in Gilbert were that the appellant, who had been convicted of murder, had driven his brother, another man and the victim to a remote place where the other two beat the victim to death. He had taken no part in the attack, but was found guilty of murder under the common purpose provisions of s.8 of the Criminal Code (Qld). The judge had directed the jury at trial that a manslaughter verdict was not open to them unless one, or both, of the primary offenders was convicted of manslaughter. After the appellant was convicted, the High Court ruled in R. v. Barlow[8] that it was possible under s.8 for an accessory to be found guilty of an offence different from that of which the primary offender was guilty. Before the High Court in Gilbert, it was common ground that in light of the decision in Barlow, the directions given by the judge were erroneous. It was submitted for the Crown, however, that no miscarriage of justice had occurred since the conviction turned largely on the appellant's knowledge of his brother's plans. It was the Crown case that if the appellant knew his brother intended to kill or cause grievous bodily harm, then he would indeed be guilty of murder. On the other hand, if he believed it was only his brother's intention to assault the victim, then manslaughter would have been an appropriate verdict. Although the direction given was in terms that the appellant was either guilty of murder or not guilty of any offence, the Crown case was that the jury must have decided as a matter of fact that the appellant had the requisite level of knowledge to support the verdict of guilty of murder. Accordingly, the misdirection which had occurred could have had no affect on the outcome. This was indeed the view taken by McHugh and Hayne, JJ. who dissented in separate judgments. The majority however held[9] that the test to be applied was whether a jury, properly instructed, would have necessarily returned the same verdict, and held that it was possible that a properly instructed jury may have reached a different conclusion. The Court of Appeal in Queensland, by majority, had concluded by reference particularly to certain admissions made by the appellant, that a properly instructed jury, acting reasonably, would inevitably have concluded that the appellant well knew that his brother intended, at least, to cause the victim grievous bodily harm. Gleeson, C.J. and Gummow, J. agreed[10] with the dissenting judge in the Court of Appeal that the admissions were not unequivocal, and although certainly damaging to the appellant, said that "a rational jury, properly instructed, could have failed to reach the state of satisfaction necessary for a conviction of murder."

[58]

Blackley v. R.[36], which was not put to this Court in argument, should be mentioned as possibly giving some support to the applicant's case. There the applicant was charged with having in his possession a prohibited drug, ecstasy, with intent to sell or supply it to another contrary to s.6 of the Misuse of Drugs Act 1981. A comparable submission was made that the trial judge should have directed the jury regarding an alternative verdict of simple possession. The court took the view[37] that there was material before the jury which clearly raised an issue as to whether the "requisite standard of proof had been established of an intent to sell or supply", and accordingly held that the judge was under a duty to leave the alternative charge of possession to the jury. The Crown case related to a parcel (in which the ecstasy was discovered) addressed to someone other than the applicant, but at an address where the applicant and his wife resided. Inside the parcel were found five plastic bags containing a total of 750 tablets of ecstasy. No evidence was given as to the value of these drugs nor as to how many would have been required for a reasonable dosage in order for the drug to be used as a stimulant. The applicant gave evidence in his own defence saying that he had never used or taken ecstasy, had never bought any, and had never sold any. He said in evidence that he and his wife received much mail, most of which was not addressed to him or to his wife but to other people who might have lived in the house before them. He also said that his wife had received a telephone call and from that call he had heard for the first time of the addressee of the parcel. He said his wife told him that she had learnt from this telephone conversation that if any mail came for the addressee it was to be kept for that person. In these circumstances the court held that there was evidence before the trial court which clearly raised an issue as to whether proof had been established to the requisite standard of an intent to sell or supply. It is, I think, a very different case from the present.

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