R v. Nguyen ; R v Le [2007] QCA 162

Court of Appeal (Qld)|2007-05-25|Before: McMurdo P, Jerrard JA and Philippides J, Judgment of, the Court

Director of Public Prosecutions (Queensland) for the respondent

[2] A consideration of this ground of appeal requires a review of the evidence at trial. The cases against each appellant were circumstantial and the evidence did not apparently emerge as the prosecution expected. An undercover police officer who, for the purposes of the trial used the name "Jason Charles Reynolds", made regular purchases of heroin, about ten in all, from a man named Paul Battaglene. The first purchase was on 12 December 2001 and the last in June 2002. He did not give evidence of each of these individual transactions. He gave evidence only of his usual procedure. This was that Reynolds would ring Battaglene to arrange a meeting place, generally around the West End area. They would then meet and Reynolds would give Battaglene money, usually $500 or $520. Battaglene would take the money, leave and generally return after about half an hour with a small package wrapped in paper, plastic or in a balloon which he would give to Reynolds who would later surrender that package to his "controller", Detective Hutchings. On one occasion he walked with Battaglene to the shop owned or operated by the appellants on the corner of Vulture Street and Besant Street, West End, and waited at the door.

[3] Detective Hutchings gave evidence that on 31 December 2001 Reynolds gave him a package which contained .696 g of white powder, subsequently analysed as containing .12 g of heroin. Earlier that morning Battaglene had been kept under surveillance by police officers who saw him leave the appellants' shop at 11.52 am. Nine minutes later at 12.01 pm Battaglene left his vehicle at Highgate Hill and entered the front passenger seat of Reynolds' vehicle. This evidence is directly relevant to count 2.

[4] Twelve certificates of analysis were tendered. All 12 certificates related to white powder provided to Detective Hutchings by Reynolds after his dealings with Battaglene. The first (ex 1) related to a sample received on 1 January 2002 and did not contain any prohibited drug. The remaining certificates showed the presence of heroin but only one (ex 4) related to a count of supplying heroin on which the appellants were convicted, namely count 2.

[5] Battaglene gave evidence that Reynolds purchased heroin from him on a couple of occasions. Reynolds would generally give him money and Battaglene would leave Reynolds to purchase heroin with the money. He kept some heroin for himself and gave the remainder to Reynolds. He thought he always delivered the drugs to Reynolds personally. He usually purchased the heroin from the West End area but sometimes he would go to other suburbs. He did not know the appellants by name but was "pretty sure they used to work in a shop at West End" where he went on a number of occasions. He did not know the name of their shop but it was on Vulture Street. The appellants gave him credit for items like cigarettes, milk and bread when he was "camping around that area". He was asked:

"Did you have any other dealings with them, other than buying bread and cigarettes?-- I may have, yeah.

What would have those dealings been?-- As I said, that was so long ago, there were so many things going on around there. Like, I used to meet people there to buy drugs, sell drugs, yeah.

Did you have any dealings with them concerning drugs?-- I could very well have had, yeah. As I said, individual things are that hard for me to remember from, like, five years ago when I have been using drugs for, like, 25 years. It would sort of be, like, asking an alcoholic to remember every bar keeper he ever got a drink off.

But the only reason for going to their shop was to purchase cigarettes or other items?-- No, as I said, I used to have dealings in and around the shop. It was part of - it was part of the geography, like as much as I'd - yeah, it was just another place where I'd go to meet people, sort of thing.

I see. And it wasn't to deal directly with either of these two people?-- Well, as I said to you, it is that long ago. If I did, well, yeah, would have just been - would have just been like - I could score heroin from any number of places at the time, like anywhere from 10 to 15 places. And where I got heroin on each individual day, I honestly couldn't tell you. So, you know, to me it would be unfair to me to make a remark like that.

Was this shop one of those places?-- Well, as I said to you, very well could have been. I used to deal a lot around there and meet people there, and I do know a lot of Vietnamese people from around that area.

Did you ever obtain heroin from either of these two people?-- As I said to you I really - I couldn't trust my memory to make a statement like that. Not at this present point. ..."

[6] Battaglene did not state that he had ever purchased heroin from either of the appellants.

[7] On 13 June 2002 (at the end of, but within, the period of the trafficking charge, count 1) police searched the appellants' shop and found an open carton of Summit brand bottled water. Half of the 24 bottles had broken seals and about six of those bottles had lids with the residue of masking tape stuck underneath the inside of the cap. Although the search involved a drug detection dog and scientific analysis of one of the bottles of water, no traces of heroin were found. No bank notes matching the serial numbers of those given to Battaglene by the undercover police officer Reynolds were located. No drug dealing paraphernalia was found. Jewellery, including rings and other small items, was found in the search. No jewellery was, however, found hidden in the water bottle lids.

[8] By April 2002 police officers installed in the appellants' shop two cameras with listening devices, one in the ceiling of the shop, the other in the room at the rear of the shop. Another camera was set up outside the shop and focussed on the entrance. On the days that counts 5, 8, 9, 11 and 12 (all of which resulted in guilty verdicts) were said to have occurred, the following activities at the shop were recorded by surveillance cameras.

[9] The video recordings showed that on 22 May 2002 (the date count 5 was alleged to have occurred) Battaglene entered the appellants' shop at 4.08 pm. He said he was after "a couple of chickens for tonight". The word "quarter" was used. He handed money to the appellants and left at 4.10 pm. He returned at 4.16 pm and asked how much he owed. He left again at 4.17 pm. At 4.20 pm he returned and the appellant Le gave him a small item. Battaglene said, "Can I stretch the friendship and grab a $21 drink?" He then left.

[10] On 24 May 2002 (the day count 8 was said to have occurred) a man entered the store at 9.13 am and said, "Can I get a half off you?" The appellant Nguyen went over to some water bottles, removed the lids from a number of them and retrieved an item. Nguyen showed the package to the man who gave Nguyen money.

[11] At 4.25 pm on 26 May 2002 (the day count 9 was said to have occurred) an unknown man attended the shop and said, "Three hundred there." He gave the appellant Le a sum of money. In return Le gave him small white round items.

[12] At 10.35 am on 27 May 2002 (the day count 11 was said to have occurred) a man was seen to enter the shop and speak to the appellant Nguyen who in turn spoke to the appellant Le and gave her an item. The man returned five minutes later. Nguyen went to the back room and spoke to Le. He returned to the customer who said, "Yeah, I'm trying to get the money." Nguyen said, "One hundred dollars." The man went to the counter, put his hand into a slit in the counter and then put his hand up to his mouth.

[13] At 8.39 am on 28 May 2002 (the day count 12 was alleged to have occurred) an unknown man arrived at the shop and said to the appellant Nguyen that "Lounge" had told everyone the shop was the place to go. He offered to give "Lounge" a flogging if Nguyen wanted him to. Nguyen said he would never say anything. The man asked for $290 worth. Le went into the back room and returned. The man was handed an item and left.

[14] Murat Ozmert gave evidence that in the past he had used any drugs he could get his hands on to help with pain in his leg. Sometimes he got drugs from "Batto". He was once intercepted by police after leaving the appellants' shop but he could not remember when this happened. The surveillance video showed him in the store on 31 May 2002 engaging in a suspicious transaction involving water bottles. He gave evidence that he had purchased heroin at the shop but could not say from whom. When shown the video footage he said he did not recognise the location. He agreed that he would meet people at the shop and arrange to buy heroin. When asked about the two appellants he said, "I know the middle lady who used to help me - help me out with some hamburgers and sort of stuff but they're not the people I done anything shady or dodgy." The "middle lady" was the female appellant Le. No evidence was led to show that police found him in possession of heroin after leaving the appellants' shop on 31 May 2002. He did not give evidence that he could identify heroin through previously using it; nor did he identify powder he obtained from within the shop as heroin because of his previous experience with heroin. This evidence related to count 15 on which the jury returned a not guilty verdict.

[15] The appellant Le gave evidence that she and her husband, the appellant Nguyen, had become involved in dealing or pawn-broking in second-hand property, including jewellery, through their association with the casino. They used the water bottles found by police as a place of safe storage for jewellery because of earlier break-ins at the shop. The water bottles found by police with the lids unfastened were the same as those depicted in the video. She said that she and her husband were not involved in the supply and trafficking of heroin.

[16] In cross-examination she agreed that she and Nguyen were the only adults working in the shop. She kept no records about who left what property with her and she warned customers "I only keep for one month ... and if longer I won't keep it for you." She said that she guessed the value of the item and if they suggested it was valued at about $2,000 she would bargain to give them about $500 so that they would come back for their items and she would get her money back.

[17] The appellants emphasise that no drugs were found at their shop or anywhere else associated with them. The video recordings do not show what was being handed to the customers on the various occasions relied on by the prosecution to support the guilty verdicts. The jury could not exclude the innocent explanation put forward by the appellant Le in her evidence and could not be satisfied of the appellants' guilt beyond reasonable doubt.

[18] The respondent contends that having regard to the whole of the evidence including that of the appellant Le, it was open to the jury to conclude that the appellants were jointly carrying on the business of trafficking in an illegal product that was very small and very valuable. Battaglene had unquestionably on the evidence supplied heroin to the undercover police officer Reynolds on about ten occasions. Although Battaglene's memory was drug affected, he said that the shop could have been one of the places he went to to "score" heroin. On 26 May 2002 an unknown man was recorded on film at the shop handing across money and placing a small white item in his mouth. It was open to the jury to reject the appellant Le's evidence which was implausible in light of her answers to questions in cross-examination. The respondent contends that even if the jury could not be satisfied that the drug in every count was heroin, the jury could still convict: s 129(1)(b) Drugs Misuse Act 1986 (Qld).

[19] The evidence set out above establishes a strong suspicion that the appellants were involved in some illegal business but does it prove beyond reasonable doubt that on any of counts 2, 5, 8, 9, 11 and 12 they supplied the dangerous drug heroin, and that they were trafficking in the dangerous drug heroin?

[20] There is simply no evidence, either direct or from which it could be inferred, that the suspicious transactions recorded on video by police and said to constitute counts 5, 8, 9, 11 and 12 involved heroin. Battaglene said he used to meet people at the appellants' shop to buy drugs but he could not remember if he dealt directly with the appellants. Ozmert gave evidence that he had purchased heroin at the shop where he met people to buy heroin but he had not done anything "shady or dodgy" with the appellants. The video surveillance evidence establishes only that the appellants were dealing in something small and, inferentially, of value and unlawful. One certificate of analysis showed no heroin. Of the certificates of analysis which showed heroin, none could be linked to counts 2, 5, 8, 9, 11 or 12 or to the appellants' shop.

[21] The evidence on count 2 is also insufficient to establish that the appellants supplied heroin to Battaglene on 31 December 2001. Whilst it established beyond doubt that Battaglene supplied Reynolds with heroin that day, the evidence does not establish that Battaglene obtained the heroin he gave to Reynolds from the appellants or their shop. The fact that he was at their shop about nine minutes before he supplied Reynolds with the heroin was a relevant circumstantial fact. But there is no evidence that Battaglene obtained the heroin at the shop; the evidence did not exclude the possibility that Battaglene obtained the heroin he later gave to Reynolds before he went to the appellants' shop.

[22] The prosecution case was particularised and conducted only on the basis that the trafficking and supplying was in heroin and not on any alternative basis that the trafficking and supplying may have been in another dangerous drug. Section 129(1)(b) Drugs Misuse Act 1986 (Qld) can have no application in this case.

[23] Although the case against the appellants raised a strong suspicion that they were involved in the business of supplying heroin, criminal charges must be proved to the high standard of beyond reasonable doubt. The prosecution did not establish on the evidence beyond reasonable doubt that in count 2 Battaglene obtained the heroin he supplied to Reynolds from the appellants. The prosecution did not establish on the evidence beyond reasonable doubt that on counts 5, 8, 9, 11 and 12 the appellants were supplying customers in their shop with the dangerous drug heroin. It follows that the prosecution did not establish beyond reasonable doubt that the appellants trafficked in heroin. The appellants are entitled to the benefit of that doubt, it being fundamental to our criminal justice system.

[24] The appeal must be allowed, the convictions and verdicts set aside and instead verdicts of acquittal entered on counts 1, 2, 5, 8, 9 11 and 12.

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