R v Nguyen [2023] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION: R v Nguyen [2023] QCA 168

PARTIES: R / v / NGUYEN, Adon Minh / (appellant)

FILE NO/S: CA No 213 of 2022

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: Supreme Court at Brisbane – Date of Conviction: 1 September 2022 (Brown J)

DELIVERED EX TEMPORE ON: 23 August 2023

DELIVERED AT: Brisbane

HEARING DATE: 23 August 2023

JUDGES: Mullins P and Flanagan JA and Henry J

ORDERS: Appeal allowed.The conviction in respect of the charge of trafficking in dangerous drugs with a circumstance of aggravation is quashed.A new trial is ordered in respect of that charge.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – where the appellant was charged with and stood trial for trafficking in dangerous drugs with a circumstance of aggravation or alternatively trafficking in dangerous drugs simpliciter – where the circumstance of aggravation is provided for by s 161Q of the Penalties and Sentences Act 1992 (Qld) – where the appellant appeals on the basis that the circumstance of aggravation was not yet in existence for part of the charged trafficking period – where the jury were not directed as to a pre-requisite of criminal liability for the circumstance of aggravation, it not having been drawn to the attention of the learned trial judge by either counsel – whether there is a reasonable possibility that the directions omission may have affected the verdict / Drugs Misuse Act 1986 (Qld), s 5 / Penalties and Sentences Act 1992 (Qld), s 161Q, s 161R, s 251 / Serious and Organised Crime Legislation Amendment Act 2016 (Qld) / Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited

COUNSEL: M J Copley KC for the appellant / G J Cummings for the respondent

SOLICITORS: Jacobson Mahony Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The appellant stood trial on count 1 of an indictment containing other counts to which he pleaded guilty. Count 1 charged trafficking in dangerous drugs with a circumstance of aggravation or alternatively trafficking in dangerous drugs simpliciter. He pleaded guilty to the simpliciter charge, which plea was not accepted by the prosecution in discharge of count 1. The circumstance of aggravation alleged:

“And Adon Minh Nguyen was a participant in a criminal organisation;

And Adon Minh Nguyen knew, or ought reasonably to have known, the offence was being committed in association with one or more persons who were, at the time the offence was committed, or at any time during the course of the commission of the offence, participants in a criminal organisation.”

That circumstance of aggravation is provided for by s 161Q of the Penalties and Sentences Act 1992 (Qld). The offence provision, s 5 Drugs Misuse Act 1986 (Qld), provides at s 5(2) that s 161Q creates a circumstance of aggravation for the offence. If such a circumstance of aggravation is proved, it has the significant consequence per s 161R Penalties and Sentences Act, of attracting a mandatory seven years imprisonment cumulative upon the base component punishment attaching to the simpliciter charge.

The appeal involves a temporal issue arising from the circumstance of aggravation not yet being in existence for part of the charged trafficking period. The indictment alleged the trafficking occurred between the 1st of January 2014 and the 2nd of March 2018. Section 161Q and s 5(2) were only inserted in 2016 by the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) and only commenced from the date of assent of 9 December 2016, almost two years into the trafficking period.

The legislature was evidently conscious that in introducing such amendments there was a need to deal with the very situation which arose in the present case. In Pt 14 Penalties and Sentences Act, its transitional provisions, s 251 relevantly provides:

“251 Application of s 161Q to particular prescribed offences

This section applies if—

an offender is convicted of an offence against—

…

the Drugs Misuse Act 1986, section 5 …

the offence is committed partly, but not wholly, after the commencement.

Section 161Q applies in relation to the offence only if, at a time after the commencement, the offender—

was a participant in a criminal organisation; and

knew, or ought reasonably to have known, a matter mentioned in section 161Q(1)(b).”

This adapts the language of s 161Q, which relevantly provides:

“161Q Meaning of serious organised crime circumstance of aggravation

It is a circumstance of aggravation (a serious organised crime circumstance of aggravation) for a prescribed offence of which an offender is convicted that, at the time the offence was committed, or at any time during the course of the commission of the offence, the offender—

was a participant in a criminal organisation; and

knew, or ought reasonably to have known, the offence was being committed—

at the direction of a criminal organisation or a participant in a criminal organisation; or

in association with 1 or more persons who were, at the time the offence was committed, or at any time during the course of the commission of the offence, participants in a criminal organisation; or

for the benefit of a criminal organisation. …”

The effect of s 251 is that while it was permissible for the appellant to be charged as he was, it was necessary before the jury could convict on the circumstance of aggravation for the jury to be satisfied beyond reasonable doubt that:

the offence of trafficking was, in fact, committed wholly or partly between 9 December 2016, when the circumstance of aggravation provisions commenced, and 2 March 2018 (the end date charged); and

that at any time in that period the offender was a participant in a criminal organisation and knew or ought reasonably to have known one of the matters mentioned in s 161Q(1)(b).

The jury were not directed as to this prerequisite of criminal liability for the circumstance of aggravation, it not having been drawn to the attention of the learned trial judge by either counsel. The jury were directed in ordinarily correct terms that the circumstance of aggravation would be established by proof of the matters listed in s 161Q(1)(a) and (b) “at any time during the course of the commission of the offence.” However, the course of the commission of the offence was here alleged to have commenced long before 9 December 2016. The direction thus failed by omission to confine the jury’s determination of liability to proof of the requisite elements of the circumstance of aggravation occurring after then.

There being no wrong decision of law, neither counsel having raised the point, the sole ground of appeal alleges a miscarriage of justice was occasioned by the direction which was given. In such circumstances, to adapt the language of McHugh and Gummow JJ in Dhanhoa v The Queen (2003) 217 CLR 1, 15 [49], a miscarriage of justice will have occurred if the direction which should have been given was not given and it is reasonably possible that the failure to direct the jury may have affected the verdict.

The prospect that the omission affected the verdict is no remote or fanciful possibility, given the long offending period charged. True it is the accumulation of evidence relevant to proof of the circumstance of aggravation may have heightened the prospect of the conclusion of guilt of the circumstance of aggravation more safely occurring towards the latter part of the alleged trafficking period beyond 9 December 2016. However, it is to be borne in mind the directions omission was of an essential element of liability for the circumstance of aggravation, and a substantial proportion of the evidence relied upon in proof of it occurred prior to the existence of it. The conclusion there is a reasonable possibility that the directions omission may have affected the verdict is inevitable.

The result must be a quashing of the conviction. The appellant only seeks the quashing of the conviction as it relates to the circumstance of aggravation. However, it will be recalled he pleaded guilty to count 1’s alternative simpliciter charge, and the prosecution elected, as was its right, not to accept that plea in discharge of count 1. The outcome now sought would subvert that right. The proper outcome is the ordering of a new trial in respect of the charge of trafficking in dangerous drugs with a circumstance of aggravation.

The orders are:

Appeal allowed.

The conviction in respect of the charge of trafficking in dangerous drugs with a circumstance of aggravation is quashed.

A new trial is ordered in respect of that charge.