R v Jeremy Nguyen [2007] ACTSC 6 (6 February 2007)

Last Updated: 13 February 2007

R v JEREMY NGUYEN

[2007] ACTSC 6 (6 February 2007)

CRIMINAL PROCEDURE - Indictment alleging several counts - application for separate trials - no prejudice in trial proceeding on indictment.

Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528

R v Saraswati (1989) 18 NSWLR 143

No. SCC 200 of 2005

Judge: Connolly J

Supreme Court of the ACT

Date: 6 February 2007

IN THE SUPREME COURT OF THE )

) No. SCC 200 of 2005

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

JEREMY NGUYEN

ORDER

Judge: Connolly J

Date: 6 February 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The application to sever the indictment and to proceed by way of separate trials be dismissed.

1. This is an application by the accused, Mr Nguyen, to sever an indictment and proceed by way of separate trials in respect of three counts alleging trafficking in a controlled drug, namely heroin.

2. The accused faces an indictment dated 7 March 2006 alleging that on 12 April 2005 at Canberra he trafficked in a traffickable quantity of a controlled drug, namely heroin. There are alternative counts on the indictment that on 12 April 2005 he trafficked in a controlled drug, namely heroin, and further that on 13 April 2005 he trafficked in a controlled drug, namely heroin.

3. The prosecution case is set out in the case statement filed with the indictment. It alleges that on 12 April 2005 the accused was observed driving a white Subaru WRX in the northern suburbs of Canberra. His vehicle was stopped and searched by police, and it is alleged that a plastic bag containing 1.932 grams of heroin was found. He was arrested, and taken into custody. The following morning, while in the cells of the ACT Magistrates court, he was searched by ACT Corrective Services officers and it is alleged that in the course of the search a small piece of paper was seen protruding from the accused's buttocks. When this was examined it was found to contain a plastic clip seal bag with eight small balloons containing heroin with a total weight of .379 grams. The combined weight of the heroin found in the car on 12 April and the heroin found concealed on the accused the following morning makes up the first count on the indictment, as the combined weight exceeds 2 grams, being a traffickable quantity. The alternative charges relate to the individual amounts, and are both the lesser charge of trafficking.

4. An application was lodged on 16 May 2006 to have the matters severed, but there were considerable discussions between the Crown and the accused's legal representatives before the matter came on for argument in December 2006. Written submissions on the legal issues were prepared and filed during the court vacation.

5. The accused's case is that these are separate matters that should be tried separately. It is apparent from his submissions that it will be a live issue at the trial as to whether he was in possession of the drugs found hidden in the car. He argues that the vehicle had recently been purchased from another person who had himself been subject to surveillance in relation to drug activities. In effect, the matter for the jury would be whether the Crown can prove the link between the accused and the drugs hidden in the car. The link between the accused and the drugs found in his posterior will, of course, be easier for the Crown to prove. Indeed, the accused says that he is prepared to plead to a count of simple possession of these drugs. It is noted in the submissions, however, that the analysis of the two quantities of drugs shows a different level of purity, adding to the argument that while the accused may have been in possession of the drugs in his posterior (no doubt it would be argued that they were for his own use), these were different from the drugs found in the car, which it will be said he had no knowledge of and which the jury would be asked to infer were connected with the previous owner of the vehicle.

6. The test to be applied in such cases is well established. In Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 Brennan J said at 541-2:

When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.

7. The accused's case is that there would be such prejudice here. The Crown case is that the charges arise out of the one set of facts, and that the nub of the Crown case, being the first count, is that when stopped and arrested on 12 April the Crown says it can prove that the accused was in possession of a traffickable quantity of heroin, being partly concealed in the vehicle and partly concealed in his body. It says that in presenting the alternative lesser counts it is simply exercising the broad discretion available to the prosecution to present a "back up" charge. In R v Saraswati (1989) 18 NSWLR 143, the New South Wales Court of Criminal Appeal clearly confirmed the longstanding practice of permitting the Crown to bring lesser charges. As Badgery-Parker J noted at 157:

... it seems never to have been doubted that it is normally open to the Crown to charge a lesser offence than that which the facts might justify. The prosecutorial discretion extends to the formulation of a less serious charge upon which a conviction is certain rather than running the risk of alleging a more serious offence which the facts ultimately may not sustain.

8. It seems to me that there are clear factual issues for the jury in this case. In order to obtain a conviction on count 1, the Crown must prove that the accused was linked in the relevant way to the drugs found in the car and these, together with the drugs found on his person, amount to a deemed traffickable quantity. If the jury is not satisfied of this link, it would acquit on the first count. It would, in all probability, also acquit on the second count, which also depends on the relevant link between the accused and the drugs found in the car. The third count would be made out if the Crown can prove that the accused possessed the drugs, which is admitted, and that he possessed them for the purposes of trafficking, which is denied. Again, this is a clear factual issue for the jury.

9. It seems to me that the Crown is entitled to proceed in the way proposed, seeking to establish the more substantial charge of trafficking in a traffickable quantity of heroin, with the lesser charges of simple trafficking as alternatives. It will be possible to formulate clear directions to the jury to ensure no prejudice to the accused. The accused's defence is that he had no knowledge of the drugs in the car. That is a matter for the jury, and the Crown of course bears the burden of establishing the elements of the offence beyond reasonable doubt. It cannot be the case that, merely because of such an assertion, an accused person found with a traffickable quantity of drugs but which is divided into separate parcels and concealed in separate locations on his person or in a car cannot be charged with a single offence relating to the combined weight of the drugs.

10. I am satisfied that there will be no prejudice to the accused in allowing the matter to go to trial on the indictment presently before the Court and I dismiss the application to sever the indictment and to proceed by way of separate trials.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 6 February 2007

Counsel for the Prosecution: Ms M Caffrey

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Ms J Saunders

Solicitor for the Defence: Bevan Snell Lawyers

Date of hearing: 17 November 2006

Written submissions received: 19 January 2007

Date of judgment: 6 February 2007