R v Pham [2011] ACTSC 16 (1 February 2011)

Last Updated: 9 March 2011

R v QUANG LUOC PHAM [2011] ACTSC 16 (1 February 2011)

CRIMINAL LAW – trial by judge alone – traffic in a controlled drug other than cannabis, namely heroin – insufficient evidence that the accused supplied drugs to another person – a verdict of not guilty entered

Criminal Code 2002 (ACT)

No. SCC 228 of 2009

Judge: Nield A/J

Supreme Court of the ACT

Date: 1 February 2011

IN THE SUPREME COURT OF THE )

) No. SCC 228 of 2009

AUSTRALIAN CAPITAL TERRITORY )

R

v

QUANG LUOC PHAM

ORDER

Judge: Nield A/J

Date: 1 February 2011

Place: Canberra

THE COURT ORDERS THAT:

1. The accused is not guilty of the charge.

2. The accused is discharged.

1. For three days before 31 January 2009 police had the accused, Quang Luoc Pham, under surveillance. I cannot draw any inference adverse to the accused that police had him under surveillance.

2. At about 12.38 pm on 31 January 2009 police saw the accused leave 24 Headland Circuit, Flynn, in the ACT, enter a gold coloured Mitsubishi Magna car and drive it away. Police followed the accused’s car.

3. At about 12.42 pm police saw the accused drive his car into a car park in Chomley Court, Evatt, in the ACT and park it alongside a gold coloured Kia Rio car. The driver and sole occupant of this car was Adam Pearce.

4. Police saw Mr Pearce leave his car and walk to the open window of the driver’s side door of the accused’s car. Although police had a clear and uninterrupted view of Mr Pearce at the driver’s door of the accused’s car, police did not see “anything occur” between the accused and Mr Pearce.

5. After a very short time, “a matter of seconds”, Mr Pearce returned to his car and drove it away and the accused drove his car away. Police followed both cars.

6. At about 12.46 pm police saw the accused arrive at 24 Headland Circuit. He had been away from that address for eight minutes.

7. At about 1 pm police stopped Mr Pearce’s car, searched it and found a blue coloured balloon, containing a white powder, wedged into the air vent on the car’s dashboard. This white powder was found on analysis to be heroin.

8. At about 2.30 pm police interviewed Mr Pearce about what had been found in his car. A recording of the interview and a transcript of it are Exhibit F. Although he admitted possessing the powder believing it to be heroin, that he had paid $50 for it, and that he had had it “only today”, Mr Pearce was not prepared to say how, where or when he obtained it. It is the Crown’s case that the accused supplied the heroin to Mr Pearce.

9. At 3.17 pm police, armed with a search warrant, attended at 24 Headland Circuit to search it. Police found the accused, the accused’s former wife, the former wife’s parents and sister and the sister’s child in the home. As it transpired, the home was rented by the accused’s former wife, the accused had been staying in the home to assist his former wife with their child following his former wife being injured in an accident and the former wife’s parents, sister and niece were visiting from Melbourne.

10. In the course of the search, police found in the rear bedroom of the home, which was the bedroom usually occupied by the accused’s former wife and in which her sister was sleeping during her visit,

a) $6, 720.00 cash in the top drawer of a three drawer bedside cabinet,

b) $5, 000.00 cash in the second drawer of a five drawer cabinet,

c) $3, 305.00 cash in a money box on the bottom of a wardrobe, and

d) a small plastic bag containing a white powder on the carpeted floor under the bottom drawer of the bedside cabinet; this white powder was found on analysis to be heroin.

11. During the course of the search, the accused’s former wife told police that two amounts of money, namely one of $5, 000.00 and the other of $3, 305.00, were hers and the other amount, namely $6, 720.00, was the accused’s.

12. Also during the search, the accused’s former wife denied knowing anything about the bag containing the white powder found on the carpeted floor under the drawer of the bedside cabinet.

13. Further during the search, the accused admitted, at least implicitly, that the amount of money of $6, 720.00 was his, however, he was not asked anything about the bag containing the white powder.

14. Police charged the accused with having on 31 January 2009 trafficked in a controlled drug other than cannabis, namely heroin, contrary to section 603 (7) of the Criminal Code 2002 (ACT).

15. On 5 June 2009 the accused, having pleaded not guilty on 23 February 2009, was committed to this court for trial.

16. On 15 September 2009 the accused, having been appropriately advised, elected to be tried by judge alone.

17. On 31 January 2011 the accused appeared before me for his trial. He maintained his plea of not guilty.

18. As I am judge of both the law and the facts, I recognise that the following principles govern the trial

a) the Crown has to prove the guilt of the accused,

b) the accused does not have to prove anything,

c) the level or standard of proof is proof beyond reasonable doubt,

d) the accused is presumed to be innocent unless and until his guilt is proved beyond reasonable doubt,

e) I must bring an open and unbiased mind to the evidence, I must view it coldly, clinically and dispassionately and I must not let emotion into the decision making process,

f) I must assess the evidence rationally, using logic and commonsense,

g) I can accept a witness wholly or reject a witness wholly or accept a witness in part and reject the witness in part,

h) as this is a circumstantial evidence case, I can find the accused guilty if I am satisfied beyond reasonable doubt that the conclusion that I draw from proved facts is the only reasonable and rational conclusion to draw but if there is another reasonable and rational conclusion which might be drawn which is inconsistent with guilt then I cannot find him to be guilty,

i) I cannot speculate as to why the accused did not give evidence and I cannot use his silence in court as evidence against him or to fill any gaps in the evidence or to add weight or value to the evidence that has been adduced.

19. The Crown’s case is that the accused supplied heroin to Mr Pearce and his act in doing so is supported by the finding of a bag containing heroin and a large sum of cash money in the home in which he was then living.

20. In my view,

a) the evidence does not prove that the accused gave anything, let alone a balloon containing heroin, to Mr Pearce; accepting, arguendo that something happened between the accused and Mr Pearce, because they met for some reason, the evidence is consistent with Mr Pearce giving something to the accused as it is with the accused giving something to Mr Pearce, and it is also consistent with only words passing between them,

b) the evidence, such as it is, of Mr Pearce does not assist the Crown as he was not prepared to say how, where or when he obtained the balloon containing heroin; in the absence of more, his evidence is consistent with his having obtained the heroin before meeting with the accused,

c) the fact of finding a bag containing heroin in the rear bedroom of the accused’s former wife’s home does not assist the Crown as there were five adults in the home when police arrived at it and the Crown has not excluded any of the other four of them as being possibly in possession of the drug,

d) the fact of finding three large amounts of cash money in the rear bedroom of the home may assist the Crown if other facts were proved but, in isolation, it does not support the Crown’s case,

e) the facts of finding a mobile telephone in the room in which the accused was lying on a bed roll on the floor, and of the telephone receiving a number of calls whilst it was in the possession of police do not assist the Crown’s case as the telephone has not been linked to the accused any more than it could be linked to any one of the other four adults in the home.

21. Therefore, in my view the Crown has failed to prove its case against the accused and, accordingly, I find the accused to be not guilty of the charge. The accused is discharged.

I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Associate:

Date: 25 February 2011

Counsel for the prosecution: Mr S Drumgold

Solicitor for the prosecution: The Director of Public Prosecutions

Counsel for the accused: Mr S Gill

Solicitor for the accused: Kamy Saeedi Lawyers

Date of hearing: 31 January 2011

Date of judgment: 1 February 2011