R v Nguyen [2008] ACTSC 40 (7 May 2008)

Last Updated: 28 July 2008

R v JEREMY NGUYEN

[2008] ACTSC 40 (7 May 2008)

PRE-TRIAL RULING - admissibility of evidence - hearsay - hearsay exception - Evidence Act 1995 (Cth) - evidence of received telephone calls - contemporaneous representations - state of mind evidence - admission for a non hearsay purpose - probable and reliable representation test

RULING

Evidence Act 1995 (Cth), ss 60, 62, 65(2), 66, 72, 136

R v Kearley [1992] 2 AC 228

R v Al Khair (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Priestley JA, Wood J, 20 June 1994)

Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558

Abrahamson v The Queen (1994) 63 SASR 139

Subramanian v Public Prosecutor [1956] 1 WLR 965.

No. SCC 200 of 2005

No. SCC 316 of 2007

Judge: Higgins CJ

Supreme Court of the ACT

Date: 7 May 2008

IN THE SUPREME COURT OF THE )

) No. SCC 200 of 2005

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 316 of 2007

R

v

JEREMY NGUYEN

ORDER

Judge: Higgins CJ

Date: 7 May 2008

Place: Canberra

THE COURT RULES THAT:

1. The application to rule the proposed evidence inadmissible is refused.

1. The accused, Jeremy Nguyen, stands charged that he:

... on or about the 12^th day of April 2005 ... trafficked in a trafficable quantity of a controlled drug, namely heroin.

... on or about the 12^th day of April 2005 ... trafficked in a controlled drug, namely heroin (alternatively to count 1).

... on or about the 12^th day of April 2005 ... possessed a prohibited substance, namely heroin (alternatively to count 1).

... on or about 12^th day of April 2005 ... possessed a prohibited substance, namely heroin (alternatively to counts 1 & 2).

2. It is alleged that, on 12 April 2005, police were carrying out surveillance of a white Subaru WRX, ACT registration YDK 35X. It was stopped by police including Detective Sergeant Elias Petropoulos. Three males were in the vehicle, including the accused. It was the accused's vehicle. The accused was talking on a mobile phone which was seized, pursuant to a search warrant. There was found in the vehicle 15 grams of heroin.

3. Subsequently, Detective Sergeant Petropoulos answered numerous calls to that mobile phone. The callers appeared from the statements they each made to be desirous of purchasing heroin. One was from a person offering stolen property. A location for meeting was agreed. Police attended and arrested two persons with the property foreshadowed in the phone call.

4. The accused has made an application, dated 20 February 2008, for a pre-trial ruling that the evidence of Detective Sergeant Petropoulos in particular, and of other officers as to the phone calls, be declared inadmissible as being hearsay.

5. The parties have prepared written submissions and have now indicated they wish to rely on those submissions without supplementary oral argument.

Accused's Submissions

6. The evidence proposed to be called falls into a number of categories:

Calls taken by Detective Sergeant Petropoulos from:

* The named individual offering stolen goods who referred to "J" as the expected callee;

* Unnamed individuals understood to be seeking to purchase heroin; and

Other calls taken by other officers on the same phone to similar effect as the second category above.

7. It is observed that the mobile phone was only linked to the accused by virtue of it being in his possession when he and his two companions were apprehended by police. In all six mobile phones were seized from the vehicle. The accused told police he repaired mobile phones.

8. There is a further document, also objected to, which purports to be a printout of a SIM card but its relevance is not currently apparent.

9. There may also be led a conversation between the persons arrested with the stolen property and arresting police but it is not clear what, if any, is the conversation to be relied upon. I express no view as to its admissibility.

10. It is submitted on behalf of the accused that the purpose of the evidence of statements by the named individual and others is to establish that they are persons seeking to purchase heroin for cash or goods and, hence, that the holder of the phone not only was in possession of the heroin in the vehicle (alone or jointly) but was also trafficking in heroin.

11. Ms Saunders, for the accused, conceded that there had been some cases in which assertions of intent to lay bets or buy liquor or other substances by persons phoning or visiting premises had been admitted to prove the purposes for which the premises had been occupied. Those cases involved both multiple calls and those asserting an illegal purpose, for example, to lay illegal bets, buy liquor without a licence or illicit drugs.

12. In the present case, Ms Saunders submits, the evidence would need to show that it was the accused to whom the calls were directed. That he was using the phone when police intervened does not, it is submitted, tend to establish that fact. That some of the callers apparently believed that "Jay" could supply them with drugs does not, she submits, establish that fact either.

13. She further submits that, even if the accused was the owner or custodian of the mobile phone, his number might have been falsely given or lines crossed. The anonymous callers cannot be cross-examined as to the basis for their apparent belief that the person "Jay", who was expected to answer the silver Nokia mobile phone, could supply heroin to them.

14. Accordingly, following R v Kearley [1992] 2 AC 228 and contrary to earlier cases, the implied assertions of the callers was inadmissible hearsay, their apparent belief was not itself a fact in issue on the trial of the accused. Nor is that altered by the volume of such calls. If one is irrelevant and inadmissible hearsay then each of them is equally disqualified.

15. The only other fact pointing to the accused as the recipient of the calls is the location of heroin in the car and a small quantity on his person when he was searched the next day.

Crown Submissions

16. The Crown agrees that there are two categories of asserted facts. First, that of prospective purchasers calling on the mobile phone in the accused's immediate possession when apprehended and, second, that of conversations with the person found with stolen property after a conversation he (called "S" for convenience) had with Detective Sergeant Pertropoulos whom he believed to be "Jay".

17. The Crown submissions challenge the acceptability of the authority relied upon by Ms Saunders. They point out that in R v Al Khair (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Priestley JA, Wood J, 20 June 1994) Gleeson CJ, Priestley JA and Wood J preferred to follow Brennan J in Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558 and not the House of Lords in R v Kearley (supra). That position was supported by King CJ (Mohr and Olsson JJ agreeing) in Abrahamson v The Queen (1994) 63 SASR 139.

Conclusion

18. Whilst it is true that Dawson, Toohey and Gaudron JJ in Pollitt v The Queen (supra) reserved their opinion as to whether it should be accepted that the kind of telephone communications referred to in that case should be regarded as an exception to the hearsay rule, it is clear that in Khair (supra) and Abrahamson (supra) the evidence of the content of those telephone calls was accepted as being adduced for the non-hearsay purpose of proving the business or activity of selling drugs connected with, in the case of Abrahamson, the mobile phone the accused had been observed using. There was only one call in that case from a person seeking to buy heroin. King CJ observed that that evidence was relevant and admissible even though only one call was involved and, further, that if there had been many such calls, the inference sought to be relied upon would be all the more strongly available.

19. Section 60 of the Evidence Act 1995 (Cth) (the Evidence Act) expressly permits the admission of evidence in the nature of hearsay if it is admitted for a non-hearsay purpose. That is, in itself, not a change to the pre-existing law - see Subramanian v Public Prosecutor [1956] 1 WLR 965, 970 (PC).

20. However, unless a limiting order is made under s 136 of the Evidence Act, evidence admitted under s 60 may be used for any relevant purpose, including proving the truth of the asserted fact. That is a change to the pre-existing law. Admissibility is, however, by s 62, restricted to first-hand hearsay. Section 72 expressly exempts from the hearsay rule "a contemporaneous representation about the person's [that is, the caller's] health, feelings, sensations, intention, knowledge or state of mind". However, such evidence would not be admissible simply to prove the reputation of the intended recipient of the call as a drug dealer. Proof that the caller knew he was, believed he was buying or intended to buy drugs from the recipient would be relevant and, subject to the hearsay rule, admissible.

21. The Crown, in relation to the conversation with "S" has proposed to call him. If it does so, s 66 will apply to the implied representation made by him to Detective Sergeant Petropoulos. In that case, even if "S" denied making the representation, Detective Sergeant Petropoulos could give evidence of it.

22. King CJ in Abrahamson considered that, though deserving of respect, R v Kearley should not be followed, nor did it require the exclusion of the evidence of even a single phone call on the basis of the hearsay rule. In his Honour's view the conclusion that:

(142) ... the hearsay rule did not apply to this evidence was that what was sought to be proved was not the truth of any statement either express or implied on the part of the caller, but rather the fact that an inquiry or offer relating to the sale of drugs was made.

23. The number of calls was related merely to weight. It seems to me that the decision in Abrahamson ought to be followed by this Court in preference to R v Kearley. As in Abrahamson, in this case the surrounding circumstances has a tendency to establish that the accused was engaged in the activity of selling drugs and that the purpose of the possession of the drugs in the car was for their sale.

24. Of course, it does not follow that the facts alleged would support the Crown case beyond reasonable doubt. That is not a necessary standard for the evidence to meet to be admissible.

25. Nevertheless, it seems to me that it would be an affront to common sense not to consider this evidence relevant to and probative of the guilt of the accused. In my view the evidence is admissible accordingly.

26. It should be noted that, in so deciding, I am expressing no opinion as to the application of the "inherent reliability" test, of which the spontaneity of the representation is an element (see Pollitt v The Queen) nor am I supporting the view that statements over the telephone by a caller form an exception to the hearsay rule. It is difficult to see why this medium of communication should create an exception as opposed to any other. It may be, simply, an application of the "inherent reliability" test rather than a category of its own.

27. That debate, in this Territory, is foreclosed by s 65(2) of the Evidence Act, though, as noted, it is limited to first-hand hearsay in criminal proceedings where the maker of the representation is unavailable. The circumstances in this case do satisfy the test that it is "highly probable that the representation is reliable".

28. The application to rule the proposed evidence inadmissible is refused.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 7 May 2008

Counsel for the Crown: Mr J Lawton

Solicitor for theCrown: Director of Public Prosecutions for the ACT

Counsel for the defendant: Ms J Saunders

Solicitor for the defendant: BevanSnell Lawyers

Date of application: 20 February 2008

Date of ruling: 7 May 2008