R v NGUYEN

Court of Criminal Appeal (NSW)|2001-05-29|Before: Spigelman CJ, Hulme J, Howie J, Mr P

CITATION : R v NGUYEN [2001] NSWCCA 334 FILE NUMBER(S) : CCA 60659/00 HEARING DATE(S) : 29 May 2001 JUDGMENT DATE : 7 September 2001

PARTIES : Regina Loi Thi Nguyen JUDGMENT OF : Spigelman CJ at 1; Hulme J at 2; Howie J at 67

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/0278 LOWER COURT JUDICIAL English DCJ OFFICER :

24 -IN THE COURT OF CRIMINAL APPEAL No 60659 of 2000

SPIGELMAN CJ HULME J HOWIE J Friday, 7 September 2001 REGINA -v-Loi Thi NGUYEN JUDGMENT

1 SPIGELMAN CJ: I agree with Hulme J. I also agree with the additional observations of Howie J. 2 HULME J: On 3 July 2000 this Appellant was charged that, on 6 November 1998 at Wiley Park, she knowingly took part in the supply of heroin. As particularised, and as put to the jury, the Crown case involved an actual supply by a cousin of the Appellant Manh Duc Nguyen on that date and at a flat occupied by the Appellant and that the Appellant suffered or permitted those premises to be so used that day with actual knowledge that heroin was being supplied. 3 The Appellant pleaded not guilty. On 13 July 2000 a jury convicted her and on 5 October Judge English sentenced the Appellant to 400 hours of community service. The grounds of appeal are:-

There was a miscarriage of justice because the verdict was unreasonable, or, having regard to the evidence, is incapable of being supported. The jury ought to have entertained a reasonable doubt as to the guilt of the Appellant.

The cross-examination of the Appellant and certain defence witnesses was, in some respects, improper and unfairly prejudicial, and caused a miscarriage of justice.

By reason of the combined effect of the matters referred to in grounds 1 and 2, there was a miscarriage of justice. 4 On behalf of the Appellant, reliance has been placed on a certificate, given by Judge English, that the case was a fit one for appeal, on grounds which were stated. These were:- "1. In my opinion, in order to find the accused "Not Guilty", the jury had to accept the evidence of a Crown witness, Vardana Ashweeni SINGH. 2. In my opinion, this witness's evidence was of such a nature that the jury should have had a reasonable doubt as to her accuracy and veracity. 3. The accused gave evidence, and impressed me as a witness of truth. 4. Witnesses who likewise impressed me as witnesses of truth corroborated the evidence of the accused. 5. I have a doubt about the correctness of the conviction."

Ground 1 5 The evidence showed that on 6 November 1998 the police forced entry into a flat which had been leased by a friend on behalf of the Appellant on or about 12 September 1988 and thereafter occupied by her. In the lounge room, there were a number of persons. The next room, the second bedroom, was unoccupied. In the main bedroom were the Appellant and Manh Duc Nguyen. In the bathroom, after that door also was forced, were found another 2 or 3 males. 6 According to Sergeant Abbott, he was the first police officer into the main bedroom where he saw the Appellant standing beside the bed, and Mr Nguyen standing near a wardrobe. The Appellant then jumped into bed and covered herself with the quilt. Sergeant Abbott pushed Mr Nguyen out of the room. On the floor of the bedroom at this time there were, inter alia, two small knives, 2 aluminium foil containers, 22 foil packages containing heroin, what appeared to be a small cutting table, digital scales, a stack of money amounting to $867, 17 small balloons and 2 capsules containing cocaine, some granules and small rocks of heroin. Found shortly afterwards outside the window of that or the second bedroom - which, is a matter I address below - were a further 20 odd foils of heroin. Mr Nguyen was identified as the person who had thrown the foils out of one of those windows on the arrival of the police. 7 At the time of the police entry into the bathroom the toilet was in the final stages of flushing. Thereafter a foil also containing heroin was found floating in the bowl. 8 Although the matters to which I have referred make it clear that illegal activity involving heroin was occurring in the unit, proof of any actual sale on the morning of 6 November and of any knowledge by the Appellant of such a sale was largely dependent on the jury accepting certain of the evidence of one of the persons in the lounge-room at the time of the police raid, Vardana Singh. In this court a strong attack was made upon Ms Singh's evidence. It was submitted that her evidence was so affected by error that it could not safely found a conviction. It becomes accordingly necessary to consider it in some detail. 9 Many of the errors which undoubtedly occurred lay in the witness' description of the flat and where she said the various events she described occurred. It is thus convenient in the first instance to describe the flat as it undoubtedly was. 10 There was a passageway running from the front door for about three-quarters of the length of the flat. The wall to the right of that passageway was straight and uninterrupted by doorways or other openings. The room immediately to the left on entering the flat was the kitchen. The second room to the left was the lounge-room. It extended to the straight wall to which I have referred and, in effect, incorporated that part of the passageway as ran through the lounge-room. 11 To the immediate rear of the lounge-room was a bedroom, the doorway to which opened off the continuation of the passageway. At the far end of the wall of that bedroom that divided it from the passageway to which I have referred, the passageway itself turned left around the bedroom. Immediately to the right after the turn was a door to the bathroom of the flat. One edge of that doorway was just visible to someone looking from the lounge-room along the wall dividing the passageway from the bedroom referred to. A slightly greater part of the doorway would be visible from that part of the lounge-room immediately adjacent to the other wall of the passageway. 12 A very short distance further along the part of the passageway as followed the left turn was the entrance to another bedroom, generally referred to in the evidence as the main bedroom. Neither it, nor its entrance was visible from the lounge-room. There was also a doorway at the rear end of the main passageway. This also was beside the door which led to the bathroom. In the video tape of the police raid, this door was shown closed and, except as a matter of inference - it may well have been a rear entrance - there was no evidence of where it led. There is no evidence of it being used at any relevant time. 13 Ms Singh's account and diagram of that part of the flat as was to the rear of the lounge-room were to the effect that there were 2 rooms and doorways opening off the passageway, the first being a bathroom and the second a bedroom. Somewhere further to the rear was another bedroom. Ms Singh marked this on the plan as at the end of the passageway, saying that "I think there's another bedroom here, along that way. I'm not sure but I'm not a hundred per cent, down there. (sic)" Neither her verbal description not diagram recognises the turn in the passageway. 14 During the course of her evidence, Ms Singh said that the doorway of the second room down the hallway faced the wall of the hallway, and that "whoever was coming in that door, they always closed the door. The door was always closed." She asserted that she saw the door close. In her words, "There's two doors" (to the two rooms). 15 Ms Singh's account of activities in the flat while she was there included the following. She had attended on the premises with her boyfriend, a heroin addict. When they knocked at the door, an Asian man wearing a bomber jacket opened it and her boyfriend gave him $75.00 saying he wanted "to get on". Ms Singh and her boyfriend entered and thereafter remained in the lounge room. She saw the man with the bomber jacket go into the bedroom next to the bathroom. That person returned, saying Ms Singh's boyfriend would have to wait a little while. Later the man with the bomber jacket again went to that bedroom, returning with a foil of heroin which Ms Singh's boyfriend then smoked. 16 Ms Singh said that while she was at the premises, people just kept coming to buy heroin and leaving, the person in the bomber jacket and from the description given, also Manh Nguyen, apparently obtaining the heroin from the same bedroom. 17 In evidence-in-chief Ms Singh also said that she saw a girl wearing pink pyjamas come out of that same bedroom, pop her head into the lounge-room, then go to the bathroom, apparently - for Ms Singh said she heard the sound - flush the toilet on leaving and return to the bedroom. During cross-examination, Ms Singh asserted that the girl had gone to the toilet before she popped her head into the lounge-room. There was no reference in Ms Singh's statement to the police, given on 12 November 1998, about the girl popping her head into the lounge room. In her statement the incident is described, "I saw her go to the toilet and then walk back to the bedroom and close the door." Cross-examined on the difference between this and her evidence, Ms Singh was adamant that the girl appeared in the lounge room. 18 A fourth topic of activity involving that same bedroom was also described by Ms Singh. She said that a person wearing a yellow shirt who, at the time of Ms Singh's arrival was sleeping on a mattress in the lounge room, was woken up by the man in the bomber jacket, picked up the mattress and went inside the bedroom. Ms Singh said that she did not see this person again that day, nor did anyone bring the mattress out. The video recording of the police search shows beds including mattresses in both bedrooms in the normal horizontal position and, in the main bedroom, a mattress in a vertical position against a wall. Although the shot is a short one, there seems to be a man in a yellow shirt depicted in the vicinity of the bathroom at an early stage of the police raid on the unit. There certainly is a man in a yellow singlet shown later in the lounge room. The Appellant agreed in evidence that her uncle, another occupant of the unit, was wearing a yellow top and shorts on the morning of 6 November. 19 Ms Singh said that she saw no one come out of any rooms further down the hallway than the bedroom which had been involved in the activity which she described. 20 In the witness box Ms Singh said that she was sitting against the wall on the side of the lounge-room in, or adjacent to the passageway. A sofa lounge was on the other side, away from the hallway. She agreed that a person sitting on the lounge could not see down the hallway, or the bedroom or bathroom there. However in her statement to the police Ms Singh had said:- "Loni and I sat on the lounge. Loni was having a smoke with a few of the other guys that were there. While we were sitting on the lounge the Asian girl came out of the bedroom near the bathroom. She was dressed in a pink pair of pyjamas …". 21 Cross-examined on this, Ms Singh was adamant that she had seen the girl come out of the bedroom and said that she must have made a mistake in the reference to being "on" the lounge. Later, asked "when you told the police that you were sitting on the lounge, you say you made a mistake", she said:- "Well, because I think I may be, when I first went there, maybe I went there instead of the lounge but I remember most of the time sitting there because when they started smoking I moved from there because I was pregnant at the time and I didn't want to be affected by the smoke so I most probably moved from there." 22 A little later when the questioner said, "Let's not confuse lounge with lounge room", Ms Singh said "I could have meant I was sitting in the lounge" and was then cut off. Later, while still being questioned on the presence of "on" in her statement she said that the police could have made a typing error. 23 It should also be recorded that at a fairly early stage of the video recording of the execution of the search warrant, Ms Singh is shown seated on the floor resting against the sofa. It is not possible from the video to say where she was at or immediately prior to the arrival of the police. 24 There was an issue as to the identity of the bedroom from which the foils of heroin found outside came. A statement of a Sergeant Giubin was read. In it he said that while he was outside the verandah of the unit he "saw a hand with a wooden bead bracelet come out of the venetian blind of the window next to the verandah … emptying a video case of a number of foils which fell to the ground" and that later he entered the corresponding bedroom and observed a video cover on the floor. The window next to the verandah is that of the bedroom nearest the lounge-room. 25 However, Senior Constable Garry Frost gave evidence that he saw the foils thrown out of the main bedroom window. He was not asked for further identification of the window. Nor was he cross-examined. Constable Webber said that he observed the foils below the main bedroom window and an empty video cassette cover inside that room near the window. It is clear that by the main bedroom he was referring to the room furtherest from the lounge room. Senior Constable McKinven gave evidence of seeing the foils outside the master bedroom. Again it is clear he regarded this as the bedroom furtherest from the lounge-room. The presence of a video case in that bedroom is referred to in voices recorded on the video tape of the police activity in the Appellant's unit and confirmed by other evidence. 26 Despite some argument to the contrary, the photographs in exhibit P and the video of the execution of the search warrant make it clear to my mind that the foils are outside the window of the main bedroom rather than the one nearest the lounge-room. It was in that main bedroom that the Appellant and Manh Duc Nguyen were when the police first saw them. 27 The Appellant gave evidence. She did not dispute the Crown evidence as to what had been found in the bedroom - and which in fact was recorded on videotape - but asserted she had been in bed when the police came into the room. She said that she had been asleep or half asleep until woken by noises apparently associated with the entry of the police into the flat and had had no idea of the activities which apparently accounted for the presence in that bedroom of the numerous items found by the police. She said the items were not there when she went to bed the previous night. She said the bedroom was hers and that Mr Nguyen had not been sleeping in it. She denied being aware of any sale of heroin that day. 28 In connection with the Appellant's claim of being asleep it might be noted that the police raid was at about 11 am. Although up until 4 or 5 days earlier the Appellant had started work each day at 7.30 am, she said that she was tired from arriving home the previous night at about 1 am. and a series of late nights. 29 The Appellant also gave evidence that she had permitted Mr Nguyen to live in the flat for about 4 or 5 days before the 6th November, because he was her cousin and had nowhere else at that time to live. According to the Appellant, he and sometimes his girlfriend occupied the second bedroom and some others who moved in at the same time slept in the lounge-room. The Appellant said that before Mr Nguyen moved in she had heard that he was selling heroin. On the first day he was with her she saw him hand over a small foil to a third person, an event she said which made her feel, "surprised, upset and angry". She protested at the event and told Mr Nguyen that if he continued to do that he would have to move out. Nevertheless, according to the Appellant, Mr Nguyen continued to sell heroin and she argued with him nearly every day. Asked how many times she saw other customers in the flat, the Appellant said "Once, twice or three times, I'm not so sure" and "maybe one customer or two customers a day". A friend of Mr Nguyen's also cut foil in the lounge-room. 30 According to the Appellant, she complained about Mr Nguyen's activities to her boyfriend and an aunt, but she took no further steps to prevent those activities. She gave a variety of reasons for this. They included:- He was her eldest cousin and they had been very close. He told her that she should not contact the police. She didn't want him to go to gaol because he was family and they "were like brothers and sisters". She thought that if she called the police that she would be in trouble because of her student status and because of the heroin they might find in the house. She was going to Perth in the near future, and would be getting out of the situation anyway. 31 Her claimed intention of leaving the flat was supported by, inter alia, evidence from a friend who had obtained the flat for her and who gave evidence that the Appellant had asked her to take steps to terminate the lease and by evidence of a plane ticket to Perth . 32 The Appellant surmised that her cousin had chosen to use her room on the morning of 6 November because his girlfriend was herself a heroin addict and might have helped herself. 33 The Appellant's credibility was the subject of challenge. Inter alia, there was the inconsistency between her evidence and that of police on the issue of whether she was in or out of bed when they arrived. In her interview with the police, the Appellant had asserted that the bedroom was shared by her and Mr Nguyen, a story she acknowledged was wrong and which she said she had told at the suggestion of Mr Nguyen in order that he might take responsibility for what was found away from her. Not obviously consistently, the Appellant had also told the police that she did not know whose drugs those in her bedroom were - a story she maintained in the witness box. 34 In her ERISP, the Appellant had also volunteered that she did not have a bedroom of her own - a statement inconsistent with her acknowledgment in evidence that the bedroom in which the police found her was hers and with a deal of other evidence to like effect. 35 The errors in Ms Singh's evidence mean that all of her evidence had to be scrutinised by the jury with great care and that this Court must adopt a similar approach. However, there was no suggestion that she was in the flat for any purpose other than that which she stated and that part of her account as indicated that heroin was being supplied from an area of the flat beyond the room immediately to the rear of the lounge-room derives a deal of support from the proved presence of heroin and money in, and the discarding of foils from the window of, the main bedroom. 36 The objective evidence as to the location of the mattress at the time of the police arrival also tends to indicate that Ms Singh had some knowledge as to the use of that area of the flat. 37 Clearly, Ms Singh could not have seen a second doorway and door in the position she says she did but it is appropriate to recognise the functional similarity between a doorway and the entrance to that part of the passageway as turned to the left. It is also appropriate to recognise that there were two doors in that vicinity which Ms Singh might well have seen closed. Innocent confusion of recollection in this regard is by no means out of the question. 38 It was submitted that Ms Singh's responses when cross-examined on the topic of being "on" the lounge were indicative of obfuscation, unreliability and dishonesty. That possibility is one which must be recognised but so should be the possibility that the witness was honest in her account of what she saw and, in the unusual situation of the witness box was merely trying to reconcile the not obviously reconcilable. Perhaps "on" the lounge, or implicitly all of the time, "on" the lounge, when recorded in her police statement was simply inaccurate. 39 There were other discrepancies in the evidence of Ms Singh but the ones to which I have referred were the most significant. Clearly they inspire concern but I do not regard them of such a nature as to disentitle the jury to rely on the substance of Ms Singh's evidence incriminating the Appellant. 40 The jury were also entitled to accept the evidence from Sergeant Abbott that on their entry to the room the Appellant was not only awake but out of bed. Furthermore, the suggestion that Mr Nguyen would have chosen to use the Appellant's bedroom rather than his own to apparently make up foils of heroin, moving all the paraphernalia associated with that activity into that room, and count or collect together the proceeds of his activities is not one with any inherent credibility about it. 41 When one adds to these matters, the Appellant's own evidence of having known for some days of Mr Nguyen's criminal activities, there was a wealth of evidence upon which the jury were entitled to convict the Appellant. 42 So far as her Honour's certificate is concerned, it is sufficient to note the remarks of this Court in R v W (unreported, CCA 9 March 1990):- "The first matter to be considered is the significance of the learned trial judge's report. The authorities establish that it is a factor to be taken into consideration, but that it would be wrong to substitute the opinion of the judge for that of the jury ( R v Mansfield (1916) 16 SR (NSW) 187 at 193-194; R v Thomas (1928)28 SR (NSW) 490; R v Sharah (1932) 32 SR (NSW) 444 at 447)". 43 While I appreciate that her Honour saw the witnesses and I have not, I must confess that a careful examination of the transcript does not persuade me to the same view of the Appellant. Indeed, that examination leaves me with the strong impression that she was evasive if not dishonest in a significant number of her answers. And, as I have indicated, the Appellant admitted that she was a liar, at least to the police. In any event, the issue of who to believe was ultimately one for the jury. I am not persuaded that the evidence called by the Crown was affected by weaknesses of the nature discussed in the line of authorities of which M v R (1994) 181 CLR 487 is perhaps the best known.

Ground 2 44 The first matter of complaint under this heading was that the Appellant was cross-examined about a number of money transactions, notwithstanding that the timing, places and sources of the money were not placed in issue. It was submitted that the topic was irrelevant to an issue and insofar as the cross-examination went to credit, it lacked substantial probative value so as not to be within the exception provided by s103 of the Evidence Act. 45 Similar complaint was made about some of the cross-examination of the Appellant's boyfriend, a Mr Sam Nguyen (to whom I shall refer as "Sam" to distinguish him from the Appellant's cousin) and an aunt Thi Nung Pham. A third complaint concerns the manner of the cross-examination about a number of matters associated with the money. 46 Consideration of this ground requires some further reflection on some aspects of the case against the Appellant and aspects of her response to it. As has been said, there was evidence that heroin was being cut up in, and sold from, her bedroom. The supply of heroin commonly engenders funds in the supplier. Some $867 was found on the floor of the bedroom. $525 was also found in the Appellant's wallet. 47 The Appellant's case so far as the money in her wallet was concerned was that it had no connection with any heroin dealing and was from another source. In her ERISP the Appellant said that she had withdrawn a sum of $800 from an automatic teller machine at Punchbowl at 7.30 pm. on the evening of 5 November and that the $525 was part of this sum. The original source of the funds was a friend in Queensland who wanted the Appellant's help in obtaining a visa. In evidence the Appellant gave a similar account although adding that the total amount provided by the friend was $1700, received and deposited in the Appellant's bank account on 3 November 1998. 48 One of the matters about which complaint is made is the cross-examination of the Appellant as to the $275 difference between the $800 and $525 found. It may be conceded that the Crown did not challenge the Appellant's evidence that funds were provided by the person in Queensland and that $800 was withdrawn from the bank on the night of 5 November (though there was debate as to the timing of this). Nor was there a direct challenge to the Appellant's statement that the $525 was but the residue of the $800. However, it by no means follows that the Crown was not entitled to ask any questions at all in connection with these moneys. The Appellant having advanced an explanation for the $525, the Crown was entitled to test that explanation and to do so by asking questions about the residue of the $800. Such questions went to an issue in the case. 49 As it was, the Appellant's explanation of having spent the difference of $275 on a meal and unexplained "fun" for herself and her boyfriend, or as she put it on another occasion, on "Dinner and we go chase this and we go chase that, I could not remember now" on the night she withdrew the $800 was not inherently credible, particularly given other evidence from her that she earned income from sewing at the rate of only $5 per hour. 50 As part of an attempt to prove that she had sources of funds unconnected with drugs and therefore presumably did not need to deal in them the Appellant also adduced evidence that her aunt had sent to her $3,300, deposited in the Appellant's account on 19 October 1998. Both the Appellant and her aunt gave evidence on this topic. There was no attempt in chief to provide much by way of surrounding circumstances although the bank records tendered at the time showed the withdrawal of $3000 shortly thereafter. 51 Not surprisingly, the Crown sought to explore these circumstances. In relation to this topic also it has been submitted that because it was not suggested that the money had been spent on drugs or anything else illegal, such cross-examination was irrelevant and improper. 52 In the case of these amounts also, the submission displays an abysmal ignorance of the test of relevance. The Appellant having introduced the topic as relevant to the likelihood of the Appellant having a need for funds and therefor being involved in drugs, the Crown Prosecutor was not obliged to either suggest the money came from drug dealing or other illegal activity - and he may not have had instructions or evidence which permitted him to do so - or leave the matter alone, thus permitting the inference which the Appellant sought to have drawn, viz. that she had no need of money from drug dealing. As a matter going to the issues in the trial the Crown Prosecutor was entitled to explore it. And when he did so, the Appellant's answers in cross-examination certainly were calculated to dispel any inference that the transactions demonstrated that the Appellant had no occasion to deal in drugs. "Q. Do you see there is a deposit of $3,300 (shown on Exhibit 5). A. Yes. Q. Was this from your aunt in Western Australia? A. Yes. Q. Why did she give you that money? A. Because she knew that I was in need of money, so she gave it to me. Q. Do you say that you were in need of money? A. Not that I was in need, but I didn't have money. Q. You didn't have money, is that what you say? A. Even if I had money, if she wanted to give it to me, she would do. Q. Before that $3,300 was deposited, you still had about $1,400 as your balance. A. Yes, that's my earnings (from my work).

…………. Q. Just coming back to the $3,300 on 23 October did you withdraw, $3,000 of that money? A. Yes. Q. What did you withdraw that for? A. That time I withdrew, but I don't remember for what. Q. That's a lot of money $3,000 for somebody whose working in the sewing factory or whatever it is. A. Yes, but I don't remember why I withdrew this money for, I cannot remember. Q. Did you often withdraw amounts of $3,000 or similar to that? A. No. Q. Wouldn't it stick in your mind as to why you withdraw $3,000 on this occasion. A. I really cannot remember why I withdrew this money for. 53 The cross-examination of the Appellant's aunt also may well have left the jury unconvinced that the payment demonstrated any lack of need in the Appellant. For the witness revealed that at the time of the payment she was earning at the rate of only $8 per hour, part-time and her husband received some money from Centrelink while he studied. The two were paying something for accommodation. The witness also said that she had arrived in Australia in 1994 with some $20,000. There were the following questions and answers as to why the $3,300 was given:- Q. Can I ask you why it was that you gave her $3,300? A. Because she arrive here without anyone around her, so I wanted to help her live and to go to school. Q. What I am asking you is why not give her, say, $3,000, why $3,300? A. If I had - I wanted to give her something, if I had 3500 I would have given her 3500. ….. Q. And as at October of 1998, how much of that money did you have left? A. After I lend some money to friends there was about 10,000 left in the bank. Q. You decided to give 3300 of this to Loi, the accused? A. Yes. Q. Was it for any specific purpose for her? A. I gave her some money for her living expenses, so she could go on studying. If some money was left she could have kept it or other tuition fees later." 54 The complaint that the Crown should not have cross-examined concerning the $3,000 and $3,300 transactions also fails. 55 Under the aegis of the complaint about the manner of cross-examination, five particular matters were raised. These were:- (i) that the cross-examination of the Appellant on the topic of the $3,300 and $3,000 was hostile and gave the impression that the Crown Prosecutor did not believe her, (ii) that the cross-examination of the aunt was hostile and could only have had the effect of creating an artificial conflict between the cross-examiner and the witness, and (iii) by a question I set out below, the Crown Prosecutor introduced an adversarial element between himself and the Appellant's boy-friend Sang Nguyen and implied that the Prosecutor did not believe him in the proceedings, (iv) the Crown Prosecutor's cross-examination of Sang Nguyen amounted to personal comments thinly disguised as questions, that the tenor of part of it was the projection by the Crown Prosecutor of his own apparent personal disapproval of the morality of the witness, that in an artificially dramatic way an atmosphere of personal conflict was created, and (v) cross-examination of Sang Nguyen about his attitude to heroin was inadmissible under s102 of the Evidence Act. 56 I have set out above some of the cross-examination of the Appellant and the aunt on the topic of the $3,000 and $3,300. Although my selection of those passages was for a different purpose, they are not an unfair reflection of the general tenor of the cross-examination the subject of complaints (i) and (ii) above. As a consideration of those passages tends to demonstrate, the complaints are not made out. 57 The background to the question which is the subject of complaint (iii) was that when, in the context of providing some explanation for the expenditure of $275 on the night of 5 November, the Appellant had been asked what had been eaten that night she had said "seafood" and that seafood would have been expensive. Cross-examination of Sang Nguyen, called later, included the following:- Q. What did you have to eat do you remember? A. Can't - might be seafood.

Q. Has somebody said that to you? A. She usually like seafood, but I can't remember, I tell you I can't remember exactly.

Q. Has somebody suggested to you that you should say that you ate seafood that night or not? A. I'm not sure what we ate that night, maybe. Q. I am asking you has somebody suggested to you - and you are on oath - that you should say that you had seafood that night or not. A. No. 58 It is the last question quoted which is the subject of complaint. It is impossible from the transcript to deduce the atmosphere of the trial at the time the question was asked. It may well be that in this case the reference to an oath was uncalled for but it must be remembered that there are occasions where it is by no means inappropriate to remind a witness of the fact he or she is on oath. And even if the reference was completely unjustified in this case, I see nothing to suggest that alone, or in conjunction with other matters, the matter comes close to justifying the allowance of the appeal. 59 The evidence which was the subject of the fourth and fifth complaints under this ground was as follows:- "Q. Did you tell her, well look, why don't we say - say to Manh that we're going to tell the police if he doesn't stop? A. I didn't - I didn't advise her of that. Q. Why not? A. Because I think it's, it's her family, like he's her cousin, first cousin. Q. Do you have any difficulty with people dealing in heroin or not? A. Yes I do. Q. Well, didn't you say, well don't you see that as a bad thing to do. A. Yeah, but like -- Q. But not bad enough to tell the police about it?

OJBECTION. LEGAL ARGUMENT A. First she tried to tell him to stop, you know, she just wants to give him a chance, you know, just can't get like - Q. What about you, did you do anything about it at all? A. I didn't, but I just advise her of what to do because it's between her and her cousin. Q. We're talking about somebody dealing heroin here, not just a family squabble --

OBJECTION LEGAL ARUGMENT Q. Didn't you tell me a minute ago that you didn't approve of heroin dealing? A. Yes I did. Q. Now, you were told that there was heroin dealing going on in the flat of your then girlfriend, correct? A. Yes. Q. Did you decide to do anything about it? A. I already asked, like, tell Loi to ask him to stop and she - we just talked about it and I tell - tell him to stop right away, straight away. Q. I'm sorry - were you going to say something else? A. No, we just - - Q. Did it occur to you that you could tell Manh to stop it? A. I don't usually talk to the man, but I met him once, I think I met him before in Lakemba, when they stayed in Lakemba but I haven't speak to him since, you know.

………………………. Q. Was it OK to you for Manh to continue dealing as long as he didn't do it at that flat, is that the situation? A. No --

PATCH: Moralistic grandstanding in fact. CROWN PROSECUTOR: I'll ask my friend to withdraw that comment.

PATCH: I withdraw the comment. I withdraw the comment. CROWN PROSECUTOR: Now you didn't think about telling Loi to tell Manh that she would call the police to get rid of him?" 60 Part of the Appellant's case was that, though she was the occupier of the flat and knew of her cousin's drug dealing and did nothing effective to prevent it, she had complained about it to her cousin and asked him to stop and, when he did not, complained about his dealing and refusal of her requests to her aunt and boyfriend and thus no inference of suffering or permitting drug dealing should be drawn. The Appellant gave evidence also to the effect that in Vietnamese culture it was common for men not to listen to women, especially if the women were younger. 61 In chief, Sam gave evidence that he had been in a relationship with the Appellant since late 1997, had seen in the Appellant's flat a syringe which was the subject of an angry exchange between the Appellant and Manh, and had received complaints from the Appellant about Manh's drug dealing and his ignoring her efforts to have him stop. The witness said that he and the Appellant talked about this "all the time". He corroborated her evidence as to the relative positions of her cousin and herself in Vietnamese society. 62 Against this background, it was quite permissible to challenge the Appellant's boyfriend, who purported to care about her, who supported part of her story, and who was not subject to the same societal restraints, on the topics of what either he or the Appellant might have done, or had done, to prevent drug supply in the Appellant's flat. Relevant to that was the importance to Sam of drug dealing and his own attitude to heroin. In the context of the credibility of Sam's evidence, that topic had substantial probative value. It was thus within the exception to s102 of the Evidence Act contained in s103. 63 And there is nothing in the manner or form of the cross-examination to which exception can be taken. The submission seems to ignore the entitlement of a cross-examiner, including a Crown Prosecutor, by the selection of questions asked to force a witness, on pain of being disbelieved, to a particular conclusion or to highlight improbabilities in the witness' version of events. I am by no means satisfied that in the questions the subject of present complaint the Prosecutor did project "his own apparent disapproval" of the witness' actions or morality but, if he did, it was only because such inferences as arose from the questions were in most cases self-evidently correct. 64 These complaints also fail.

Ground 3 65 Having regard to what I have said concerning the first 2 grounds, there is nothing I need add under this heading.

Orders 66 In my view the appeal fails and should be dismissed. 67 HOWIE J: I have had the very great advantage of reading in draft the judgment of Hulme J and I gratefully adopt his review of the evidence in the trial of the appellant. The grounds of appeal are set out in his Honour's judgment. I agree with what his Honour has written in respect of the second ground of appeal and could not usefully add anything. However, I wish to say something shortly about the first ground of appeal because, in the way the matter has been argued, the outcome of that ground will determine the outcome of the appeal. 68 The trial judge directed the jury that, before they could find the appellant guilty of the offence with which she was charged, they had to be satisfied beyond reasonable doubt that the evidence of Ms Singh was reliable because her evidence was an essential link in the circumstantial case of the Crown giving rise to the inference that the appellant knew that a supply of heroin was taking place on that particular morning. The crucial evidence given by Ms Singh was that the applicant had come from a bedroom dressed in pyjamas, said something to Manh, her cousin, and then gone to the toilet before returning again to the bedroom. The importance of this evidence was that, if it were accepted, the jury could have inferred that the appellant must have been aware from what was taking place in the lounge room that heroin was being supplied in the flat that morning. 69 The appeal was conducted on the basis that the direction relating to Ms Singh's evidence was correct and that the jury could not have convicted the appellant unless they were satisfied of her evidence to the criminal standard. The issue argued in support of the first ground of appeal was in effect that it was not open to the jury to come to that conclusion. 70 Two things should be noted about the evidence of Ms Singh. Firstly, the trial judge gave the jury a warning, presumably under s 165 of the Evidence Act, that her evidence might be unreliable. I do not believe such a warning was necessary, but it was in the appellant's favour and the jury were clearly made aware of the importance of Ms Singh's evidence, the defects in it and the caution with which they had to approach it. The second matter to be noted is that the trial judge has granted a certificate in which her Honour states her belief that the jury should have had a doubt about the reliability of Ms Singh's evidence. 71 However, this evidence did not stand to be assessed in isolation from the rest of the evidence before the jury. There were other issues which the jury had to determine and which could have had a significant impact upon their assessment of the general reliability of Ms Singh. None of these issues had to be resolved to the criminal standard because they were merely parts of the Crown's circumstantial case. But if they were resolved in the Crown's favour, then they could support in a general way Ms Singh's evidence. 72 There was a significant issue as to whether the jury should accept the evidence of Sergeant Abbott that the applicant was out of bed when he first entered, what was described throughout the trial as, the main bedroom. The appellant maintained that she was in bed when the police entered the room and had not risen from her bed since she retired at about 1am earlier that morning. But it was clearly open to the jury to accept the Sergeant as an honest and accurate witness on that matter despite criticisms that were made of his evidence and the somewhat conflicting evidence of police officers as to when various things were done after they forced their way into the flat. If Sergeant Abbott was accepted as reliable on this matter, his evidence supported Ms Singh's assertion that the appellant was up and out of bed before the police arrived. Of course such a finding would also have had an affect on the jury's assessment of the credibility of the applicant, a matter to which I shall return. 73 There was evidence of drugs being thrown out of the window of one of the bedrooms of the flat by Manh shortly after the police arrived. Hulme J has reviewed the evidence on that topic and it is unnecessary for me to repeat it. I would simply note that the appellant in evidence agreed that she had seen the foils outside her bedroom window when shown them by police. I conclude, as Hulme J does, that it was well open to the jury to find that the drugs were thrown from the window of the bedroom in which the appellant was found rather than from the window of the other bedroom. That finding is supported by the fact that Manh was found in the bedroom in which the appellant was located very shortly after the police entered the flat. If the jury made that finding, it would support the evidence of Ms Singh as to where Manh and the other men had been obtaining drugs to supply to customers coming to the appellant's flat that morning. 74 Further, the items and money found in that bedroom also supported Ms Singh's evidence in that regard. It was clearly open to the jury to conclude that at the time police arrived at the flat there had been significant activity in that bedroom concerned with the distribution of heroin by cutting and packaging it into foils. The jury could infer that the money found in that room was part of the proceeds of the supply of drugs on that particular morning. The jury could, therefore, conclude that this was the room to which Ms Singh was referring when she described the two men as going to a bedroom to obtain drugs even though her description of the layout of the flat was erroneous. 75 This evidence is important because Ms Singh was adamant that the appellant came from and returned to the same room from which the two men had been obtaining drugs. There was a substantial attack upon her evidence on the basis that according to her statement, she had been sitting in a position where she could not have seen down the hall and would not have been able to observe the coming and going of persons in relation to that room. However, regardless of where that room was positioned in the flat, the evidence of Ms Singh was clear that, when the police arrived, the appellant was in the room from which the drugs had been obtained to supply to persons arriving at the flat. There was nothing to suggest that she could have learned of that fact after the police arrived, even if it were possible that she saw the appellant in the lounge room when the persons in the flat were rounded up by the police. It was open to the jury to find that Ms Singh was proved to be correct about where she says the appellant was before the police arrived and, therefore, that her evidence was reliable. 76 I concede that had the evidence of Ms Singh stood alone it would have been open for this Court to conclude that it ought not to form the basis of a conviction because of the inconsistencies within it and Ms Singh's proven unreliability in respect of where she said she was when the police entered the room in light of what is shown in the video. But as there were aspects of the other evidence which the jury were entitled to find to be generally consistent with her account and supported the reliability of her evidence, I agree with Hulme J that it was open to the jury to be satisfied beyond reasonable doubt of the reliability of Ms Singh and convict the appellant upon her evidence. 77 In support of this ground of appeal, substantial weight was placed by counsel for the appellant upon the certificate given by the trial judge indicating her views as to the evidence and the unsatisfactory nature of the jury's verdict. Although considerable respect must be given to the trial judge's view of the evidence, her Honour having been in the advantageous position of seeing the witnesses, I find her assessment of the credibility of the appellant surprising in light of the objective evidence. Further, the appellant's lies to the police and the unsatisfactory nature of some of her answers about her financial affairs, as set out in the judgment of Hulme J, do little to inspire any confidence in me that she was an honest witness. 78 As Hulme J points out it was well open to the jury to disbelieve the complainant's assertion that while she slept and notwithstanding her complete opposition to his activities, her cousin set up the paraphernalia for the supply of drugs in her room rather than in his own and in effect supplied drugs from that room on that morning. In my opinion it was a matter for the jury to determine whether in light of all the evidence in the Crown's case Ms Singh's evidence should be accepted beyond reasonable doubt notwithstanding the evidence of the appellant and her witnesses. There is no basis for this Court to interfere with that determination. 79 I agree with Hulme J that the first and third grounds of appeal fail and the appeal should therefore be dismissed. ************

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties

Cases Cited (1)

Cited By (1)