REGINA v. NGUYEN [2002] NSWCCA 403

1 MEAGHER, JA: I agree with Greg James, J. 2 SPERLING, J: I also agree with Greg James, J. 3 GREG JAMES, J: This is an appeal against conviction and an application for leave to appeal against a sentence imposed on the applicant in respect of an offence of supply of a prohibited drug, to wit, 4.42 grams of heroin. 4 The offence arises under s.25(1) and s.29 of the Drug Misuse and Trafficking Act 1985. It is punishable by a maximum of 15 years imprisonment and/or a fine of up to $220,000. 5 The appellant had pleaded not guilty and was tried before his Honour Judge Dodd and a jury in the District Court of New South Wales in October 2001. The jury found him guilty. 6 The trial judge passed a sentence of imprisonment for three years to commence on the date upon which sentence was imposed, 28 February 2002, to expire on 27 February 2005. In respect of that sentence, a non-parole period of two years and three months, commencing on 28 February 2002 and expiring on 27 May 2004 was imposed. 7 On sentence, the trial judge took into account that the applicant had been in custody, bail refused, for some five days whilst the proceedings were pending but that he had otherwise remained on bail until sentence. 8 Four grounds of appeal against conviction are asserted. The are:- "1. The appellant did not receive a fair trial by reason of the admission of evidence relating to the finding of gold bars. 2. The appellant did not receive a fair trial by reason of the admission of evidence relating to the finding of cash and gold bars. 3. The learned trial judge did not give complete directions regarding the meaning of 'did supply'. 4. The learned trial judge gave flawed directions regarding the giving of evidence by the appellant." 9 On the hearing of the appeal, the applicant's counsel conceded that the Crown case was very powerful and that, even if these grounds were upheld, the court might well apply the proviso in s.6 of the Criminal Appeal Act 1912 (see Regina v. Festa [2001] HCA 72). 10 Ground one represents a more particular focus of the matters referred to in ground two. It is convenient to deal with those two grounds together. 11 The following brief outline of facts is taken from the written submissions provided on the appellant's behalf:- "The appellant resided at 111 Edgeware Road, Enmore. On 30 March 2000, police there executed a search warrant. Upon a search of his person, police found heroin contained in six foils and nine water balloons. He had on his person about $650 in cash. In the bedroom of the appellant and his wife, police found $4,000 in cash. In another room, possibly used in conjunction with a shrine, were located 24 small pure gold bars weighing 900 grams. The value of the bars was taken as $12,000. Police located, in the kitchen, empty water balloons. In the living room, was located pieces of silver foil, scales and a heroin smoking implement. The appellant was interviewed. He made no admission of actually supplying heroin or having it for the purpose of supply. He gave evidence to the effect that the heroin was other than for supply." 12 In his remarks on sentence, the trial judge referred to the summary of facts as follows:- "Police received information and as a result executed a search warrant at your home at 111 Edgeware Road, Enmore on 30 March 2000. You were present at the time and a search of your person revealed a film canister in your left trouser pocket containing six foils and nine multi-coloured water balloons containing a white rock substance. In your wallet was $650 in cash and a number of other items. A search of your bedroom revealed, amongst other items, an amount of $4,000 in cash. In an adjacent bedroom police located 24 gold ingots each of 33.75 grams secreted in a shrine and in a vase. In an adjacent bedroom police located $1,500 in cash in a man's suit jacket. In the kitchen they located a further amount of rock substance in silver foil also thought to be heroin as was the previously referred to rock substance. Also located in the kitchen were two bags of multi-coloured water balloons similar to those located on your person. In the lounge room area police found a set of electronic scales in a video cassette cover. On the floor in the lounge room in an open packet of cigarettes were found several pieces of silver foil and a smoking implement for heroin. You were arrested and taken to Newtown Police Station. You were interviewed by way of the ERISP procedure. The approximate value of the gold ingots was $12,000. At the outset of the interview with police you admitted that you had heroin in your possession. You said in the interview that you had not developed an intention one way or the other as to whether you might use it for yourself or might sell it but you had not made up your mind at that stage." 13 I do not understand there to be any issue raised with the trial judge's account of those facts. 14 At the trial, it was the Crown case that the appellant had the heroin in his possession for the purposes of supply. The Crown relied upon the statutory consequence of possession of not less than the traffickable quantity of the prohibited drug whereby a person who has such an amount in their possession is deemed to have the prohibited drug in their possession for supply unless they prove that they had the prohibited drug in their possession otherwise than for supply (s.29 of the Drug Misuse and Trafficking Act 1985). The appellant sought to discharge the statutory onus by making a case that his possession of the drug was purely for his own use, relying upon evidence that he had been a heroin user for approximately two years and giving, by way of explanation for the scales, that they were required to ascertain the quantum available to him for his own use and for the balloons, that they were available for a party. He gave evidence himself in support of his own defence. 15 It is notable that the explanation given to the police of the applicant not having developed as at the time of the finding of the heroin an intention one way or the other would not, in itself, have satisfied the statutory burden lying upon the appellant as the Act requires the jury be satisfied of the positive contention that the possession was for a use other than for supply. 16 The appellant also gave evidence of the explanations for the presence of the money and the gold bars and it is to those matters that the first two grounds of appeal relate. 17 The trial judge was informed of an objection to the tender of evidence involving the gold at the outset of the trial. In an opening given to the trial judge, summarising the nature of the evidence for the purpose of the trial judge's ruling, he was informed by the Crown Prosecutor that in addition to money being found in the appellant's pocket and wallet, there was an amount of some $4,000 located in a bedroom shared by the appellant and his wife. That account continued:- "In an adjacent room was located concealed in two separate spots 24 little gold bars, each weighing 37.5 grams of 24 carat purity, having a then value of approximately $12,000." 18 Later in that opening the Crown referred to the finding in the house of numerous items, eg., a dozen new watches in packages still with tags in some cases, large quantities of new clothing and Manchester goods with tags, 15 mobile phones in a drawer, 70 odd bottles of shampoo and hair conditioner, large amounts of jewellery, a large amount of electrical equipment including certain items such as video recorders which had the serial numbers erased, which were entirely consistent with the dealing by the appellant in stolen goods. 19 At that time, the Crown Prosecutor said this:- "I have given some thought to whether it is appropriate to even attempt to lead evidence in relation to the bulk of the material that was found in the house. The difficulty from the Crown's point of view is that it is difficult for me to rule out the possibility that the other material, although there is a powerful inference it was stolen material, it's hard to rule out an inference that it may not have been related to drug dealing. It could have just been the accused acting as a receiver of stolen goods." 20 The Crown had pointed out that in that regard the accused faced charges of goods in custody in relation to the mass of the material that was found. The Crown contended that certain of the items that were found were clearly admissible. That was conceded by Mr. Conomos of counsel, a senior and experienced advocate appearing for the appellant. In particular, the trial judge was informed that Mr. Conomos did not argue that the scales, the balloons and the cash were inadmissible. 21 The Crown continued:- "The only item that I am seeking to lead evidence about finding which is in dispute is the gold bars, the 24 gold bars which were located in a room which is called a shrine room. There was some sort of religious shrine in there, it wasn't a room used for someone to live in, and there were a lot of items in that room, including these gold bars. There was a granny flat out the back of the building which contained a large amount of cash and there was cash in another room. I'm not leading that because the evidence is that other persons lived in those areas of the house." 22 The Crown Prosecutor went on to refer to his intention to lead in evidence the $4,000 found in the main bedroom and said:- "And I will be endeavouring to lead evidence subject to your Honour's ruling of the gold bars." 23 He referred to explanations given by the appellant to the police for the $4,000 found in the bedroom and the possession of the gold bars. The Crown Prosecutor referred to evidence that the appellant had been on unemployment benefits as had been his wife and that he had been unemployed and getting benefits for about 10 years, that the premises were owned by them both and that he had been sharing the main bedroom with his wife. 24 It was submitted that in the circumstances of apparent impoverishment and drug dealing, the presence of the gold bars was highly relevant to the jury's consideration of whether the appellant had the heroin in his possession for a purpose other than supply. 25 The Crown submitted:- "It's circumstantial evidence which would tend to support the Crown's submission that he was a dealer in the same way that his possession of $700 on his person and the $4,000 in the cupboard and the balloons and the scales, the fact that he had 15 separate lots of drugs in his pocket, all that goes to support the contention put forward by the Crown that this wasn't a self-use situation." 26 Mr. Conomos on the appellant's behalf, told the trial judge that there was no argument about the primary facts. He contended that admission of the evidence of the gold "would tip the balance against a fair trial". "If the jury have that there'd be no defence to go to the jury." He argued that once the evidence of the money, the drugs and the scales, together with the appellant being a methadone user was before the jury to add the evidence of the gold would elevate the matter into a different endeavour entirely, in particular, because there were other persons in the house and he referred to the appellant having told the police that the bars belonged to his wife. 27 The trial judge heard short argument as to whether the presence of the gold was merely relevant to past dealing and ruled:- "Mr. Conomos, it seems to me the gold is in the same category as the cash, so I rule that the Crown is entitled to lead the evidence of the finding of the gold." 28 In this court it is submitted that there was no need for the gold bar evidence to be admitted because there was already enough evidence for the Crown to make its point about possessions beyond the appellant's means by using the evidence of the money. It was submitted that the gold bars, by their nature, are in a form that suggests the accumulation of finances "in the way of people who look outside the banks as a place to keep their liquid assets". It was in addition suggested, that, although drugs are on the street exchanged for cash, a drugs for gold exchange is virtually unheard of, so that the presence of the gold leads only to an inference of prior accumulated wealth. It was submitted that the gold was consistent with other illegal activity or having been legally acquired. It was suggested that the small amount of drug found did not, of itself, suggest any correlation with the gold in question. 29 These submissions entirely miss the point. It was open to the jury to reject the accused's explanations in evidence and in the recorded interview. It was open to the jury to reject the various explanations he gave in evidence for the presence in his home of the paraphernalia which were the indicia of drug dealing and for the jury to accept that the presence of that paraphernalia and accumulated wealth pointed to his intending to deal with the heroin with which he had been found rather than to use it all for his own purposes. That there was other additional evidence useful for the same purpose and that an explanation was offered for this evidence does not deprive this evidence of significance and, hence admissibility. Nor is there any substantial prejudice, much less unfair prejudice, apparent. 30 Evidence of the presence of the gold bars was material which, in my view, the jury were perfectly entitled to have regard to, just as they were entitled to have regard to the significant sums of cash in the premises where heroin was found, notwithstanding that cash could not be said to have come from dealing in the instant heroin. 31 So far as the presence of the cash was concerned, it may have been explicable from dealing in stolen goods or from, as was suggested, being the property of the wife or obtained by reason of having been obtained from a Vietnamese mutual investment fund (a "hui"), a fund created from a pool of money subscribed by a number of people each of whom may bid to draw down money from the amount pooled at differing times. The jury was entitled to reject that explanation. 32 The fact that some such explanation might be asserted does not make the evidence inadmissible or require its exclusion in discretion. 33 When the presence of the cash was considered in conjunction with the ownership of the premises by the appellant and his wife, that the amount outstanding on mortgage in respect of the premises was in the vicinity of some $130,000 but that in late 1999 a builder had been paid by the appellant's wife $80,000 in cash to renovate the premises, notwithstanding that the appellant and his wife had received various Government benefits and pensions over the previous 10 years on which they had lived, the presence of that cash adopts considerable significance, considering the issue confided by the legislation to the jury. 34 As conceded by the Crown, the value of the drug found in the possession of the appellant was not necessarily "correlated" with that of the gold or the cash found at the appellant's house. But, as the Crown submits, the finding of the gold and the cash were relevant circumstances which the Crown was entitled to have in evidence to enable the jury to consider whether the appellant had displaced the effect of the deeming provision. The evidence of the cash and the gold bars was also important as affecting the credibility of the applicant when he gave evidence asserting the heroin was for his own use. There was no error in admitting the evidence of the presence of the gold bars. 35 Further, so far as the cash was concerned, senior and experienced trial counsel conceded its admissibility. It is sought now to contend, notwithstanding there was no evidence at trial to suggest it, that because of the presence of the stolen goods it is possible that the money might have been related to dealing in stolen goods rather than drug dealing and that, in those circumstances, accompanying the probative value to be attached to the evidence of the existence of the cash was an unacceptable, unfair prejudice (see s.137 of the Evidence Act 1995). On the present charge, were the jury of the view the money was related to dealing in stolen goods, that would have assisted the appellant's case. 36 For the same reasons I have given in relation to the evidence of the gold bars, the evidence of the cash was admissible. It was not only not objected to, but at trial, counsel conceded it was relevant and should be admitted. Since this is a matter to which Rule 4 of the Criminal Appeal Rules relates and because senior and experienced trial counsel specifically conceded the admissibility of the cash, leave should not be granted to the appellant to raise this ground. I would reject grounds one and two. 37 Ground three, as well, raises a matter that was not asserted at trial and to which Rule 4 applies. 38 It is submitted that the trial judge failed to give compendious legal directions concerning the meaning of "did supply". The trial judge did direct the jury about the matters concerning which it had to be satisfied. He directed the jury as to the ordinary meaning of the term "supply" and that the issue in the case was whether the accused had the heroin in his possession otherwise than for supply. He directed the jury that it was the accused's case that he had it in his possession for his personal use and that if the jury were of the view that it was more likely than not that he was telling the truth when he said that, they had to find the appellant not guilty. 39 It is now contended that he should have explained the statutory underpinning to liability so arising although it is not contended that the lack of such explanation would have had other than a purely theoretical significance in the case. 40 In dealing with this submission, some reiteration of the principles relating to the judge's function when summing up is appropriate. It is not necessary that a summing up should contain a "disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case" - The Queen v. Lawrence (1981) 1 All ER 974. It is not the function of a trial judge to expound to the jury matters of law going beyond those which the jurors need to understand to resolve the issues that arise for decision in the case - The Queen v. Chai [2002] HCA 12. 41 Judges should generally seek to simplify and shorten summings up and should avoid lectures on the law and unnecessary explanations of legal principles - Regina v. Williams (1990) 50 A. Crim. R. 213. The summing up should address the real issues as the case is fought - Alford v. Magee (1952) 85 CLR 437 at 466 and deal with the factual issues that arise - Regina v. Sandford (1994) 33 NSWLR 172. 42 This summing up met those tests. The criticisms are misconceived. The matter was not raised at trial. I see no possible basis for there being any miscarriage of justice. In my view, Rule 4 applies and leave should be refused. 43 Ground four claims that the trial judge gave flawed directions concerning the giving of evidence by the appellant. It is contended in that regard that by specifically referring to the appellant in a passage in which his Honour directed the jury concerning the appellant's entitlement to have said nothing at all, rather than to have given evidence, he fell into critical error. That passage is as follows:- "The accused gave evidence. He was not obliged to do that. He could have said nothing at all, but he chose to give evidence and thereby subject himself to cross-examination. That choice by him does not of course mean that the evidence he gave was necessarily true. His evidence simply falls into the same category as the evidence of the other witnesses who gave evidence and were subject to cross-examination. By going into the witness box the accused made himself a witness in the same sense as all of the other witnesses. Exactly the same principles apply in the evaluation of his truthfulness and reliability as apply to the other witnesses." 44 It is contended that this passage shows that "his Honour has here singled out honesty alone concerning the appellant as an aspect for scrutiny". It is contended that by reason of the use of the phrase "of course" and what is asserted to be a contrast with general directions his Honour had given about similar considerations earlier in the summing up, there was a suggestion given to the jury that the appellant may not be "giving evidence that is necessarily true because he has a vested interest in his own case" (see Robinson v. The Queen (1991) 180 CLR 531). It was submitted this was particularly important in this case as the appellant had the burden of making out the statutory offence. I do not see the slightest substance in that submission. 45 I am reinforced in my view as no objection was raised by senior and experienced counsel at the trial. The direction was legally accurate and fair. Again Rule 4 applies. Leave should be refused. 46 I therefore conclude that none of the grounds are made out. The Crown case was overwhelming. I see no basis for any assertion of any risk of miscarriage of justice. I see no error and therefore no need to turn to the application of the proviso. 47 On the application for leave to appeal against sentence, it was submitted that the learned trial judge had fallen into error in failing to find special circumstances. True it is that there were matters proved in evidence that the trial judge may have considered to be special circumstances. However, the finding of special circumstances amounts to a characterising by the trial judge of matters proved in evidence considered by that judge to have that character having regard to all the circumstances to which regard is to be had when imposing the individual sentence. Essentially, the attribution to facts found by the trial judge of that character is a matter for the trial judge and the exercise of his discretion to impose a non-parole period which involves a parole period longer than that s.44(1)(b) prima facie requires: see Regina v. Simpson [2001] NSWCCA 534. I see nothing in the present circumstances which would have required the trial judge to make any such findings. 48 It was also argued that overall, the sentence was excessive and that the appellant should have been treated as though this offence was an isolated one. The trial judge held the following:- "In your favour, although it is not an excuse, but it does place the commission of the crime in context, is the fact that you were, at the time of the commission of the offence, a heroin user. Also in your favour is the fact that you have stopped using heroin since your arrest. Also in your favour is that you have no prior convictions for drug trafficking, but in my view, that is of little significance in view of the verdict and the basis for it and my finding that you were a dealer in heroin at the time of this offence which was not an isolated instance of the selling of heroin." 49 Later, the trial judge said:- "However, because this is not an isolated matter, because as I have found, you were a drug dealer." 50 It will be apparently that the trial judge has failed to extend leniency to the appellant on the basis of this being an isolated offence. On the proved facts, I see no error in his Honour coming to this conclusion. His Honour's views were amply supported by the verdict and the evidence. The submission that the presence of stolen goods in the premises deprives the drug dealer's paraphernalia, including the money and the gold bars found in the premises, of that significance lacks reality. The sentence is on the statistics well within the appropriate range. Nor do I see that the sentence and non-parole period imposed are in any way tainted by any error or, indeed, having regard to the appellant's criminality, excessive. We were informed from the bar table that the appellant's family had, by reason of his imprisonment, been undergoing considerable hardship. That is a matter which, on appeal, is not, in accordance with the authorities, open to us to take into account. In my view, leave to appeal against sentence should be granted, the matter having been fully argued, and the appeal dismissed. 51 The orders I propose are: the appeal against conviction be dismissed; leave to appeal against sentence be granted, and the appeal be dismissed. **********

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