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- R v Nguyen[2007] QCA 162
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R v Nguyen[2007] QCA 162
R v Nguyen[2007] QCA 162
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Appeal against Conviction Appeal against Conviction |
ORIGINATING COURT: | |
DELIVERED ON: | 25 May 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 May 2007 |
JUDGES: | McMurdo P, Jerrard JA and Philippides J Judgment of the Court |
ORDER: | 1.Appeal allowed 2.Convictions and verdicts set aside on counts 1, 2, 5, 8, 9 11 and 12 and instead verdicts of acquittal entered on those counts |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – where circumstantial evidence established a strong suspicion of conducting an illegal business – where no evidence to show beyond reasonable doubt that the appellants supplied or trafficked in the dangerous drug heroin – whether the guilty verdicts could be supported by the evidence Drugs Misuse Act 1986 (Qld), s 129(1)(b) |
COUNSEL: | J R Hunter for the appellants M J Copley for the respondent |
SOLICITORS: | Bell Miller for the appellants Director of Public Prosecutions (Queensland) for the respondent |
[1] THE COURT: The appellants pleaded not guilty in the Brisbane Supreme Court on 12 February 2007 to one count of trafficking in the dangerous drug heroin between 31 December 2001 and 14 June 2002 at Brisbane. They also pleaded not guilty to the 15 counts of supplying a dangerous drug heroin which constituted the particulars of the trafficking charge. On 15 February 2007 the prosecution withdrew five of the counts of supplying a dangerous drug, namely counts 4, 6, 13, 14 and 16. On 19 February 2007 after a six day trial the jury convicted each appellant of count 1 (trafficking in heroin) and counts 2, 5, 8, 9, 11 and 12. The jury returned not guilty verdicts on counts 3, 7, 10 and 15. Both appellants contend that the guilty verdicts were unsafe and unsatisfactory and cannot be supported having regard to the evidence.
The evidence
[2] A consideration of this ground of appeal requires a review of the evidence at trial. The cases against each appellant were circumstantial and the evidence did not apparently emerge as the prosecution expected. An undercover police officer who, for the purposes of the trial used the name "Jason Charles Reynolds", made regular purchases of heroin, about ten in all, from a man named Paul Battaglene. The first purchase was on 12 December 2001 and the last in June 2002. He did not give evidence of each of these individual transactions. He gave evidence only of his usual procedure. This was that Reynolds would ring Battaglene to arrange a meeting place, generally around the West End area. They would then meet and Reynolds would give Battaglene money, usually $500 or $520. Battaglene would take the money, leave and generally return after about half an hour with a small package wrapped in paper, plastic or in a balloon which he would give to Reynolds who would later surrender that package to his "controller", Detective Hutchings. On one occasion he walked with Battaglene to the shop owned or operated by the appellants on the corner of Vulture Street and Besant Street, West End, and waited at the door.
[3] Detective Hutchings gave evidence that on 31 December 2001 Reynolds gave him a package which contained .696 g of white powder, subsequently analysed as containing .12 g of heroin. Earlier that morning Battaglene had been kept under surveillance by police officers who saw him leave the appellants' shop at 11.52 am. Nine minutes later at 12.01 pm Battaglene left his vehicle at Highgate Hill and entered the front passenger seat of Reynolds' vehicle. This evidence is directly relevant to count 2.
[4] Twelve certificates of analysis were tendered. All 12 certificates related to white powder provided to Detective Hutchings by Reynolds after his dealings with Battaglene. The first (ex 1) related to a sample received on 1 January 2002 and did not contain any prohibited drug. The remaining certificates showed the presence of heroin but only one (ex 4) related to a count of supplying heroin on which the appellants were convicted, namely count 2.
[5] Battaglene gave evidence that Reynolds purchased heroin from him on a couple of occasions. Reynolds would generally give him money and Battaglene would leave Reynolds to purchase heroin with the money. He kept some heroin for himself and gave the remainder to Reynolds. He thought he always delivered the drugs to Reynolds personally. He usually purchased the heroin from the West End area but sometimes he would go to other suburbs. He did not know the appellants by name but was "pretty sure they used to work in a shop at West End" where he went on a number of occasions. He did not know the name of their shop but it was on Vulture Street. The appellants gave him credit for items like cigarettes, milk and bread when he was "camping around that area". He was asked:
"Did you have any other dealings with them, other than buying bread and cigarettes?-- I may have, yeah.
What would have those dealings been?-- As I said, that was so long ago, there were so many things going on around there. Like, I used to meet people there to buy drugs, sell drugs, yeah.
Did you have any dealings with them concerning drugs?-- I could very well have had, yeah. As I said, individual things are that hard for me to remember from, like, five years ago when I have been using drugs for, like, 25 years. It would sort of be, like, asking an alcoholic to remember every bar keeper he ever got a drink off.
…
But the only reason for going to their shop was to purchase cigarettes or other items?-- No, as I said, I used to have dealings in and around the shop. It was part of - it was part of the geography, like as much as I’d - yeah, it was just another place where I’d go to meet people, sort of thing.
I see. And it wasn’t to deal directly with either of these two people?-- Well, as I said to you, it is that long ago. If I did, well, yeah, would have just been - would have just been like - I could score heroin from any number of places at the time, like anywhere from 10 to 15 places. And where I got heroin on each individual day, I honestly couldn’t tell you. So, you know, to me it would be unfair to me to make a remark like that.
Was this shop one of those places?-- Well, as I said to you, very well could have been. I used to deal a lot around there and meet people there, and I do know a lot of Vietnamese people from around that area.
Did you ever obtain heroin from either of these two people?-- As I said to you I really - I couldn’t trust my memory to make a statement like that. Not at this present point. …"