R v Luhan [2009] VSCA 30

Court of Appeal (Vic)|2009-03-05|Before: MAXWELL P, VINCENT and NEAVE JJA

CRIMINAL LAW - Application for leave to appeal against conviction - Applicant convicted of one count of trafficking in not less than a commercial quantity of a drug of dependence (methylamphetamine) - Whether trial judge gave adequate jury direction regarding mental element of offence charged - Whether open to jury to find beyond reasonable doubt that quantity of drug was at least a commercial quantity - Application refused.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 The applicant, George Luhan, was convicted by a County Court jury of one count of trafficking in not less than a commercial quantity of a drug of dependence (methylamphetamine), contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981. At the time the alleged offence was committed, the applicable commercial quantity of methylamphetamine was 1.25 kilograms.[1]

2 Luhan was sentenced to seven years' imprisonment, and required to serve a minimum of five years. He filed an application for leave to appeal against conviction and sentence, but has since elected to pursue his appeal against conviction only.

3 The offence occurred in the course of an undercover operation primarily directed at the alleged illegal drug dealings of a co-offender, Milorad Keca. The Crown case was that Luhan had agreed to supply three pounds of methylamphetamine to Keca and his co-offender, Kasim Rexhepi, which were then to be sold to 'Lou Smith' (an Australian Crime Commission undercover operative). The Crown argued that Luhan's involvement in this arrangement could be inferred from circumstantial evidence which comprised: recorded phone calls between the co-offenders; conversations recorded by Smith; police observations of the three men's movements; and Smith's evidence at the trial about Luhan's presence and behaviour when Rexhepi handed over the drug to Smith.

4 Shortly before the alleged offence, which occurred on 11 March 2004, Smith agreed to purchase three pounds of methylamphetamine from Keca and Rexhepi. On 10 March 2004, Smith met with Keca at a café in Lygon Street, Brunswick, to discuss the transaction, which it was agreed would take place the following day. Later on 10 March, Keca gave Smith a three ounce sample of methylamphetamine powder.

5 On 10 and 11 March 2004, there were several taped phone conversations in which Luhan, Keca, and Rexhepi arranged to meet. The following telephone conversation between Keca and Luhan was recorded at 7.02 pm on 10 March 2004:

Keca You find your friend

Luhan Er yeah I ring him up now again - Pause - yeah come here and we see what happen

Keca Yeah because this Italiano is in the morning anyway we (wrds)

- Overtalk -

Luhan - Interference - In the morning

Keca Yeah

Luhan - Interference - Alright in the morning (wds)

...

Keca - Interference - (Wds) very very early in the morning nine o'clock you know eight o'clock

Luhan Yeah okay no problem (but) but he tell me 'bout ten o'clock this idiot

...

Luhan I go to get to see you to see what happen you know what I mean

Keca Alright alright alright alright (wd)

- Overtalk -

Luhan Just I get the some things (wds)

... [2]

At 7.33 pm on the same evening, there was a phone call between Keca and Smith in which they agreed to meet at 8.30 am the next day.[3]

6 At 8.19 am the following day (11 March 2004), a further conversation took place between Keca and Luhan, as follows:

Luhan Hello

Keca - Interference - Hey good morning George

Luhan Yeah good morning how are you

Keca Oh not bad not bad (where's the other one) still asleep

Luhan Er you want me to wake him up he says he gonna wake up he gonna be there nine o'clock but - stutters - nine o'clock he's gonna [be] there half past nine he's gonna take the kids to school and then he gonna go to you

Keca Oh yeah yeah yeah - interference - alright what you think this he have three or no

Luhan Huh

Keca - Interference - He have three

Luhan He have three that why - interference - I'm gonna go (wds)

...

Luhan I'm gonna go there now alright

Keca To make sure because I go see my friend now

Luhan Alright go see your friend - pause - and ah I gonna go there now and come as soon as possible alright

Keca No worry no worry no worry I see

....

Neither of these conversations made any specific reference to the supply of drugs by Luhan, although Luhan referred to 'three' in the 8.19 am conversation.

7 In a conversation between Luhan and Keca at 9.05 am, it was arranged that Luhan would go to St Albans, where Rexhepi lived. Luhan said he was leaving straight away. At 9.59 am Keca called Luhan. Luhan told Keca that he was 'here already waiting for you', and was told by Rexhepi to 'come here', and told by Keca to wait half an hour. Again, no specific reference was made to drugs. Rexhepi phoned Luhan at 12.58 pm and told him to come to his home and wait. There was another call between Keca and Luhan at 1.24 pm, in which Luhan said he was 'here', and was told to come into the house.

8 On the same day, Smith arranged with Keca that the transaction would take place at Keca's house in Wood Street, Preston. Smith met Keca and Rexhepi at the Preston Hotel at approximately 12.30 pm. Smith was accompanied by a female undercover operative posing as his girlfriend. The group set off for the Wood Street address in separate cars. Keca and Rexhepi detoured via another address, while Smith and the female undercover operative waited for them at Wood Street. Following a further change of plans, it was arranged that Smith would follow Keca to an address in St Albans, where the transaction would take place.

9 Smith travelled to 125 Alfrieda Street, St Albans, to wait for the drugs to be delivered. At approximately 3.34 pm, Smith and Keca left the St Albans premises in separate cars. The two men travelled to a shopping centre where Smith gave Keca $9,000 for the three-ounce sample which Keca had given him the previous day.[4] Smith returned to the St Albans address at approximately 3.43 pm.

10 At 3.13 pm, the following telephone conversation took place between Luhan and Keca, and later between Luhan and Rexhepi:

Luhan Hello

Keca Ay far?

Luhan Huh

Keca Ya far?

Luhan Ah not far but (wd) I come down there (wd) another hour

Keca One hour

Luhan (Wd) one hour (wd) (yeah)

Keca One hour

Luhan Yeah

...

(Kasim Rexhepi comes on the line)

Rexhepi What's happened mate?

Luhan (Wds)

Rexhepi What's happened

Luhan - Stutters - Er I have to come by myself he gonna give to me to me everything and I come down myself about one hour

Rexhepi Alright

11 At approximately 5.37 pm, a member of the surveillance team, Senior Constable Belinda Apps, observed Luhan leave the St Albans premises, get into a white Magna car and drive away. At 5.43 pm, Luhan returned in the same car, which he parked outside the premises. He then entered the premises.

12 At approximately 5.50 pm, Smith, who had been waiting in the backyard of the St Albans premises, returned to his car to make contact with his supervisors. As he left the house, Smith noticed a man sitting in a white Magna car parked on the street. He was wearing a white singlet. Smith had not previously seen the man, but has identified him as Luhan.

13 At approximately 6.08 pm, Luhan returned to his car and drove off. Shortly thereafter, Rexhepi called Smith and asked him to return to the premises. Around this time, the white Magna car returned and Luhan was again seen entering the premises.

14 Smith went to the backyard, where Rexhepi appeared from behind a shed. Smith saw Rexhepi retrieve a large red and white bag which was lodged in a nearby tree. Rexhepi took the bag into the shed, followed by Smith. Luhan entered the shed a short time later.

15 Smith opened the bag and saw that it contained what he assumed was methylamphetamine powder. Smith gave the following account in examination-in-chief:

...[W]e got into the shed and I took possession of the bag and opened it up and at that point, that's when the other male person who - I'd seen him come from the Magna out of the front of the house, he'd walked into the shed and so I had a look at the product and I asked, 'Is there three pounds there?' And Rexhepi looked at this other male person, they nodded, he nodded to Rexhepi, I took it as 'yes', there's three pounds there.[5]

Smith then left the premises under the pretence that he was going to get money from his car. In fact, Smith returned to the car to inform his supervisors of what had taken place. Luhan followed Smith toward the car, but Smith asked him to wait at the gate. Luhan then re-entered the house.

16 A short time later, the police attended the premises to arrest Rexhepi and Luhan. By this time, the methylamphetamine powder had spilled out of the bag onto the floor and some of it was wet. There was a hose in the back-yard. The drugs seized by the police weighed 1257.2 grams, an amount which exceeds the commercial quantity, and had a methylamphetamine purity of approximately 5 per cent.

17 The learned trial judge summarised the Crown case as follows:

...[T]he prosecution argue from recorded conversations leading up to Smith's arrival at St Albans [that] [y]ou could draw an inference that Smith had been [buying] drugs from Keca and that in more recent times he had put in an offer to buy three pounds of amphetamine; that there [were] to-ings and goings from the hotel in Preston to Woods Street and ultimately the address at St Albans. Smith was told to wait; he had to go; he went down to the shops; he came back because the delivery of the drugs had not arrived; and then there is a number of telephone calls from Keca and Rexhepi to Luhan and then ultimately at some stage when Luhan arrives late in the afternoon, Smith is shown the drugs. Smith says, he goes to get the money to pay for the drugs and Luhan ... follows him to the gate and Smith says - wait here, you'll scare my girlfriend. The Crown say all those matters, the total weight of all those circumstances carries the inference that Mr Luhan is the man who transported the drugs from wherever they were to the address in St Albans; that he was going out to be paid by Smith. And you should draw from those facts and circumstances an inference that he was trafficking in amphetamine.[6]

18 The defence case was that Luhan was owed money by Rexhepi, and that he had attended the St Albans premises on 11 March 2004 to collect that money. Luhan did not give evidence at the trial, but in his record of interview he said that he was owed $2000 and was trying to recover it. The trial was conducted on the basis that Luhan did not dispute that Keca and Rexhepi were trafficking in methylamphetamine in their dealing with Smith. Luhan's case was that he had a different - and innocent - reason for being present at the time of the transaction.

The learned trial judge erred in his directions to the jury concerning the mental element of the one offence charged (namely, trafficking in not less than a commercial quantity of a drug of dependence, namely, methylamphetamine, contrary to s 71AA of the Drugs, Poisons & Controlled Substances Act 1981 (Vic) (as amended)).
The learned trial judge erred in failing to direct the jury that, for Luhan to be convicted of the one offence charged (namely, trafficking in not less than a commercial quantity of a drug of dependence, namely, methylamphetamine, contrary to s 71AA of the Drugs, Poisons & Controlled Substances Act 1981 (Vic) (as amended)), it was necessary for the Crown to prove beyond reasonable doubt that Luhan intended to traffick in at least 1.25 kilograms of methylamphetamine.

20 In Director of Public Prosecutions Reference No 1 of 2004; R v Nguyen[7] this Court said:

...[O]ffences of the kind created by ss 71 and 71AA [of the Drugs, Poisons & Controlled Substances Act 1981] are defined by quantities. It is therefore implicit in the offences created by ss 71 and 71AA that the accused must be shown to have had the intent to traffick in a prohibited substance and in a particular quantity.[8]

It follows that Luhan could only be convicted of the offence of trafficking in a commercial quantity of methylamphetamine if the jury were satisfied beyond reasonable doubt that he had agreed to supply a commercial quantity of that drug.

21 In our view, the learned trial judge correctly directed the jury on the elements of the offence. He said:

The first element, the prosecution must prove that the accused intentionally committed an act of trafficking, and I will explain an act of trafficking in a moment. The second element is the prosecution must prove that the accused intentionally trafficked in a drug of dependence, and the third element is the prosecution must prove that the accused intentionally trafficked in not less than a commercial quantity of that drug.

Before you can find Mr Luhan guilty of trafficking, you must be satisfied of those elements, the first two elements, and if you be satisfied that he trafficked in a substance not less than a commercial [quantity], you have got to be satisfied of the third element, that he intended to do that.

The jury can have been in no doubt that the element of intent was a distinct matter about which they had to be satisfied.

22 As to the second element of the offence, the judge said that the prosecution had to prove beyond reasonable doubt that Luhan trafficked in methylamphetamine; that is, he 'offered to sell or agreed to sell, or had in his possession to facilitate the agreement, a quantity of methylamphetamine'. His Honour said that the jury must decide whether they could infer from all of the evidence that Luhan had that intention.

23 As to the quantity being trafficked, his Honour said:

Now the next aspect you have got to consider is whether there is a commercial quantity. You have heard 1.25 kilograms of pure methylamphetamine is the cut off area. If anything more than that the person traffics, he traffics in not less than a commercial quantity. The commercial quantity being 1.25 kilograms. [Defence counsel] says if the powder recovered weighs ... 1.257 it is clearly over the commercial quantity, and it is conceded that that is what Keca and Rexhepi were trafficking in. That is what Mr Smith would have purchased if he purchased it. That issue, of course, is really not a matter for contention.

The real contention in this case, as I keep saying, is whether Mr Luhan was party to the agreement, whether he was there for the purposes of trafficking in the methylamphetamine. Whether he was a courier, he brought the powder to [Alfrieda] Street. Whether he was there as a part - partners agreeing to make the transaction for the monies in the shed with Mr Smith at the time. Whether he walked to the gate to collect monies with Mr Smith. Whether he, in effect, was a partner with Keca and Rexhepi at that final moment to sell amphetamine to Mr Smith.[9]

24 Senior counsel for Luhan submitted that his Honour's direction had misled the jury. It was said that the jury would not have appreciated the need to be satisfied beyond reasonable doubt that Luhan had intended to traffick in a commercial quantity of the drug, and that his Honour's comment that the weight of the methylamphetamine was not in contention would have led the jury to overlook the need to consider this issue. Counsel relied on numerous cases in which applicants successfully appealed against convictions for drug offences because the jury had not been adequately directed on the requirement imposed on the Crown to prove that the accused had intended to cultivate or sell the relevant quantity of the drug. [10]

25 In our view, that submission is without merit. The judge's directions correctly addressed the real issues in the trial. His Honour was not required to direct the jury about a matter which the defence had not put in issue (unless - which was not the case here - it could reasonably be seen to have emerged as a real question from the evidence). As this Court has said repeatedly, it is the responsibility of the trial judge 'to decide what are the real issues in the case' and, having done so, to explain the law and summarise the evidence only so far as is relevant to those issues.[11]

26 In the present case, as the judge made clear in his directions to the jury, the defence did not dispute that Keca and Rexhepi were trafficking in an amount that exceeded the commercial quantity. The defence contention throughout, as the trial transcript makes unambiguously clear, was that Luhan was not a party to the agreement of Keca and Rexhepi to supply a commercial quantity of methylamphetamine to Smith.

27 For perfectly understandable forensic reasons, the defence did not seek to advance an alternative case to the effect that, if (contrary to his primary position) Luhan was a party to the trafficking agreement, he was unaware that it concerned a commercial quantity of the drug. In the circumstances, it is likewise unsurprising that defence counsel took no exception to this (or any other) aspect of the judge's charge.

The verdict of the jury is unreasonable and/or cannot be supported having regard to the evidence, in that it was not open to the jury to find beyond reasonable doubt that Luhan had trafficked in at least 1.25 kilograms of methylamphetamine.

PARTICULARS

It was not open to the jury to find beyond reasonable doubt that Luhan had brought at least 1.25 kilograms of methylamphetamine to the premises where he was arrested.

30 Formal admissions were made on behalf of Luhan in the following terms:

That on a search of the said premises after [his] arrest, the police found a red coloured Grace Brothers plastic shopping bag on the floor of the garage.
That upon analysis by...the Victorian Police Forensic Services Department, the bag was found to contain powder of the weight of 1257.2 grams, which contained methylamphetamine at a purity of approximately 5 per cent.
That methylamphetamine is a drug of dependence as defined by the Drugs, Poisons and Controlled Substances Act 1981.
That this quantity of substance mixed with methylamphetamine amounted to a commercial quantity of methylamphetamine.

31 This ground of appeal relied, however, on the undisputed fact that some of the drug had spilled on the ground and had become wet. Senior counsel for Luhan submitted that the Crown could not exclude the possibility that the weight of the drug the subject of the trafficking was less than a commercial quantity. In other words, so the argument went, the Crown could not exclude the possibility that the amount in excess of 1.25 grams was the weight of the water which had got into the drug after Smith and Luhan had left the shed. Counsel submitted that, since there was a reasonable hypothesis consistent with Luhan's innocence,[12] the jury verdict was unsafe and unsatisfactory and must therefore be quashed.

32 This ground is also without merit. As we have said, the weight of the drug was never in issue at the trial. The defence case accepted that Keca and Rexhepi had traded in a commercial quantity of the drug, but contended that Luhan was not involved. As the Crown pointed out on the appeal, defence counsel could have pursued the issue of weight, but chose not to do so. This could have been done, for example, by calling Luhan, by cross-examining the analyst as to whether the weight of the drug was affected by the fact that it had water in it, or by cross-examining the arresting officers about how the drug got on to the floor of the shed and how it got wet. Of course, if this issue had been pursued at the trial, the Crown could have called relevant evidence on the point and could also have asked the trial judge to leave to the jury the alternative count of trafficking simpliciter.

33 When asked by the Court, senior counsel for Luhan confirmed that he relied on the principle enunciated by Barwick CJ in Pemble v The Queen[13] that - irrespective of the position adopted by the defence - the trial judge had a 'duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused'. What made that submission untenable on this appeal, however, was that there was no evidence at all supporting the hypothesis that the amount trafficked was less than a commercial quantity of the drug. The defence case did not address quantity at all.

34 As noted earlier, Smith's evidence was that Luhan's co-offenders had agreed to sell him three pounds, less three ounces, of the drug. Rexhepi produced a red and white bag containing the drug from a tree where it had been hidden. Luhan came into the shed as Smith opened the clear plastic bag inside the red and white bag and unwrapped the contents containing the methylamphetamine. Smith was not cross-examined about the appearance of the drug, or about whether it was wet or dry at that time.

35 Constable Ryan attended the Alfrieda Street house to carry out a search after Smith left. He gave evidence that he saw a red and white bag and yellow powder on the floor of the garage, some of which was wet, which he collected and placed in a container. Detective Sergeant Buric also attended the scene and saw powder that had spilled out of a bag in the garage area. There was a damp area around the bag. He said there was a hose in the back yard which might account for the wet area. Defence counsel at trial did not cross-examine either of these witnesses about the state of the drug, the procedure adopted in collecting it, the amount of it which was wet or dry, or the hypothesis that one of the men had attempted to hose it away.

37 The vice inherent in all three grounds of appeal is that they were premised on a different trial having been conducted from that which was actually conducted on Luhan's behalf. Those who seek to challenge the result of a trial will be treated as bound by the manner in which the trial was conducted, and confined to the matters actually put in issue by them or by their counsel (except where a matter, thought not raised, can reasonably be seen to have emerged as a real question from the evidence actually adduced at the trial).

[2] Only relevant extracts from the quoted conversation have been included.

[3] Smith called Keca at 8.06 pm to again confirm the time.

[4] Keca was later arrested in the city, with $9,000 in his possession.

[5] An issue was raised by counsel for the applicant about a disconformity between this evidence and what appeared from the transcript of the relevant conversation. It is unnecessary to resolve that issue.

[8] Ibid 303 (Vincent, Eames and Nettle JJA). See also 305-306 [15], relating to the drawing of inferences.

[10] See for example R v Reed [2008] VSCA 20, [13]; R v Mc Kittrick [2008] VSCA 69, [10]-[11]; R v Garlick (No 2) [2007] VSCA 23, [11]-[13]; R v Callaghan [2007] VSCA 135, [52].

[11] See R v AJS [2005] VSCA 288; (2005) 12 VR 563, 577 [54]-[57] (Maxwell P, Nettle JA and Redlich AJA), and the cases there cited.

[13] [1971] HCA 20; (1971) 124 CLR 107, 117-118; see also La Fontaine v The Queen (1976) 136 CLR 62, 69 (Barwick CJ), 75-7 (Gibbs J), 85-6 (Stephen J), 87, 91 (Mason J), 99-100 (Jacobs J); CTM v R [2008] HCA 25; (2008) 247 ALR 1, 23-4, 28-30 (Kirby J), 46 (Hayne J); R v Bertrand [2008] VSCA 182, [110]-[113], [125]-[131]; cf Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603, 617-21 (Gaudron, McHugh, Gummow and Hayne JJ).

Poisons and Controlled Substances Act 1981

Controlled Substances Act 1981

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