31 It was submitted that the learned trial judge was obliged to instruct the jury that the Crown had to prove beyond reasonable doubt not only that the appellant knew of the presence of heroin but that she knew that the amount exceeded the commercial quantity, namely 250 grams.
32 Reference was made to Regina v Yee Kam Lau (Court of Criminal Appeal, unreported, 2 December 1998). It was submitted that without such a full instruction there was a real possibility that the jury convicted the appellant on the basis that she knew of the existence of the heroin but not how much there was, especially since his Honour had told the jury that the element of quantity was not in dispute.
33 As appears from the summary of the evidence which I have set out in this judgment, the Crown relied upon the evidence of Nguyen. If the jury had a reasonable doubt that he was telling the truth, they would have had to acquit the appellant. That was the way counsel saw and conducted the case.
34 During his summing-up his Honour said this:
The evidence really has been within a relatively short compass. You have heard both counsel say that the case, to the greatest extent at least, relies upon the two main persons, Mr Nguyen and what the accused says herself. That is pretty clear, the way the case has been conducted by both parties.
35 Later on his Honour said this:
The Crown, as I see it, relies on, to prove its case, the accused's knowledge that she supplied a prohibited drug, principally on the evidence of Mr Nguyen.
36 The defence case was that the appellant simply did not understand what was happening at the airport and during the journey to Park Street. She did not understand the conversation about money. She gave no directions. She was not a supplier of drugs. She admitted carrying the money to the man and returning with the heroin, but in the belief that the bag contained redeemed valuables or some such thing.
37 The defence could hardly have challenged the payment of $96,000 on behalf of Nguyen and of a similar sum on behalf of Le, or the handing over by the man of the amount of heroin Nguyen had ordered, namely about a kilogram.
38 Although there was some cross-examination of Nguyen about the precise amount of money handed over - by reference to a record of $90,000 in the transcript of an interview between Nguyen and the police - it was never suggested to him that he was not, on that occasion, paying a large amount of money for one kilogram of heroin, one half for himself and the other half for Le. The defence case was simply that Nguyen had decided falsely to implicate the appellant in order to obtain a sentence less than the one he deserved for his crime.
39 So, in the way the trial was conducted, the jury had no reason to differentiate between one part of Nguyen's evidence and another. If they accepted his evidence generally, they must have accepted it as to the amount of money paid and the amount of heroin contracted for.
40 On the case conducted by the Crown and the defence, the appellant either knew that a kilogram of heroin was being sold for $192,000 or she did not know that heroin was being sold at all. That explains why his Honour directed the jury as he did and why, when invited to do so, defence counsel declined to ask for a redirection.
41 This was not a case like Yee Kam Lau, where the facts gave rise to a real issue whether the accused knew or was aware of the likelihood that what he possessed was a quantity of heroin which exceeded the commercial quantity. I would refuse leave to appeal on this ground.
42 The next ground of appeal argued complained about what was said to be the failure by his Honour to instruct the jury that it would be dangerous to convict the appellant on the uncorroborated evidence of Nguyen. On his own evidence Nguyen was an accomplice, and his evidence had to be made the subject of a warning: Evidence Act s 165(1)(d). However, no particular form of words was required: subs (4).
43 His Honour said this to the jury:
I give you this direction now, because it is a very important direction in this case. Not that the others are not important, but this is very important because of the very nature of this case and what the Crown relies upon to prove it, and I give it to you now because I will be making reference back to it when I am dealing with Mr Nguyen's evidence. Mr Nguyen has admitted himself that he was involved in this crime. He pleaded guilty to it. Therefore, you might have very little problem determining that Mr Nguyen is an accomplice, that is, a party to this crime. He says so himself.
The law requires me to tell you people that his evidence could therefore be unreliable. You see, the reason the law requires me to tell you people this is not that the law thinks that you people do not have any commonsense, but the law is built up from a great history of experience. We sit in these courts every day of our lives, and we see cases over and over again. The law has been operating for centuries and the law recognises that certain types of evidence can be unreliable.
You people coming from your everyday lives, we do not know if you have sat on a criminal trial before. Chances are that some of you have never sat on a criminal trial or all of you have not, so you come to this experience as a unique experience and you therefore might not readily recognise the dangers of a particular area of evidence that in fact can be unreliable.
Therefore, there is an obligation upon judges to emphasise to juries when such occasions arise, and the law recognises that when there are joint parties in a crime that there may be very good reasons why one participant may say something that is in fact untrue to further his own interests, and he may do so to the real prejudice of some other person.
Now, that could apply in this particular case, because we know that Mr Nguyen was a participant in the trial and we know that Mr Nguyen has given evidence, and very damning evidence against the accused, from what he has said. Now, it may be that his evidence is unreliable. Ultimately it is a matter for you, the jury, to say whether you accept it or whether you reject it, having regard to all of the material in this case, but it is for me to tell you to carefully scrutinise his evidence and be conscious of the fact that it is, or could be unreliable. It is a matter for you. You see, there may be many and varied reasons why such a person would give untruthful evidence to further his own interests to perhaps encourage considerations from all sorts of areas. It may be to make life more comfortable in prison where he knows he must go or to look after the interests of some third person that we do not know about, so therefore you blame some other person. They are some examples as has been suggested in this case. To look after his own interests and his own interests being to get the best result he can for himself by way of a reduction of sentence that we in fact heard he got. So you can see that there might be many and varied reasons why such a person's evidence could be unreliable. And I mention the last of those, because we do know that he got a discount on his own sentence because he assisted authorities and was willing to give evidence against the accused.
Now, he, like anyone else, could probably easily manufacture evidence if he chose to do so. On the other hand, it is a matter for you, he may very well be telling the truth. It is again a matter for you. You have to make the ultimate decision. Let me say this to you, though. There is nothing particularly unusual about what Mr Nguyen has done. People often give evidence in these courts, and often they have been parties to crimes themselves, and often in giving evidence against somebody else they have got reductions of sentences. Our law makers have in fact told us there is a section of our law that says a judge has to take that into account on sentence, and give a person the advantage of it if he assisted the authorities in bringing other wrongdoers to justice and when you think about it, perhaps it is not an unjustifiable thing for law makers to do, because as Mr Crown put to you, there is a community interest to ensure that all wrongdoers are brought to justice. So if one wrongdoer is prepared to assist the authorities in bringing other wrongdoers to justice, it can be seen perhaps why our law makers have regarded that as being something that they should be, as it were, given credit for.
Of course, it can bring about that very real unreliability that we speak about that they might be willing to tell lies about other people to get a benefit that they should not get because they are telling lies. What Mr Glennon says to you is that in this case that is exactly what has happened here. He has told lies about the accused so as to feather his own nest and get that couple of years reduction on the sentence that he got.
Mr Crown says to you that is not the case. At all times when he was arrested he immediately made a clean breast of his own involvement in this case, and there has been no evidence before us, anyway, that he was saying anything about the accused at that stage, maybe he did, but it was not until later in the piece on the evidence in this case that we heard that he became aware that he would get a discount on his sentence, or some consideration, if he was prepared to come along and give evidence against the accused, and the Crown says to you that is exactly what happened. There has been no deal, as has been put, between the police and him. It is the Crown that is prosecuting this case, and the Crown has called in Mr Nguyen in evidence, and the Crown who has prosecuted Mr Nguyen, and who ensured through the police that the court became aware of his assistance, and thus he got his discount for that.
So ladies and gentlemen of the jury, you will see that it is a very important direction I give you to scrutinise his evidence carefully, because it does fall into that area of the possibility of being unreliable, and you have to treat it with great caution. On the other hand, it does not mean for one moment that simply because he did give evidence against the accused, simply because he did get a discount on sentence, that you should disbelieve him. You look at what he says, together with all the other evidence, and look at it very carefully and ask yourself in the end result do you believe him, and that is your ultimate task.
44 Defence counsel did not ask for any further direction. It was submitted on appeal that his Honour failed to comply with the requirements of s 165(2)(c) Evidence Act in that he did not instruct the jury that it would be dangerous to convict the appellant in the absence of corroboration of Nguyen's evidence.
45 In fact, s 165(2)(c) contains no reference to the danger of conviction or to the presence or absence of any need for corroboration. The subsection is in the following terms:
(2) If there is a jury and a party so requests, the judge is to:
...
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
46 Reference was made to s 164 which is in the following terms:
164 (1) It is not necessary that evidence on which a party relies be corroborated.