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R v Letran (No 2)[2016] QDC 239

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Letran (No 2)  [2016] QDC 239

PARTIES:

R

(the Crown)

v

ANNA TU-UYEN LETRAN

(defendant)

FILE NO/S:

1282 of 2016

DIVISION:

Criminal

PROCEEDING:

Judge Alone Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

13 September 2016 – Delivered Ex Tempore

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2016

JUDGE:

RS Jones DCJ

ORDER:

Defendant found guilty on both counts.

COUNSEL:

M Spenser for the Crown

B Power for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Robertson O'Gorman Solicitors for the defendant

  1. [1]
    On 12 September 2014, after hearing submissions I made an order for a trial by a judge alone pursuant to sections 614 & 615 of the Criminal Code, the defendant was arraigned on 2 counts of supplying a dangerous drug.  Pursuant to s 6 of the Drugs Misuse Act 1986, a person who unlawfully supplies a dangerous drug to another, whether or not such other person is in Queensland, is guilty of a crime.  Count 1 on the indictment alleges that:

“That on or about the twenty-third day of October, 2014 at Durack or elsewhere in the State of Queensland, Anna Tu-Uyen Letran unlawfully supplied the dangerous drug cocaine to another person.”

  1. [2]
    Count 2 alleges that:

“that on the fourth day of April 2015 at Fortitude Valley or elsewhere in the State of Queensland, Anna Tu-Uyen Letran unlawfully supplied the dangerous drug cocaine to another person.”

  1. [3]
    The defendant has pleaded not guilty to both charges.
  1. [4]
    Following a very brief opening, Mr Spencer for the prosecution tendered four exhibits and then closed his case. Those Exhibits were:

Exhibit 1 – A disc containing the footage of “WhatsApp” messages between the defendant and one Sheena Padua.

Exhibit 2 – The Crowns particulars of the charges against the defendant.

Exhibit 3 – Admissions tended pursuant to s 644 of the Criminal Code.

Exhibit 4 – A transcript of “WhatsApp” communications between the defendant and Padua that occurred on 23, 24 and 25 October 2014 and 4 April 2015.

  1. [5]
    Following the tender of those documents Mr Spencer closed the case for the Crown. The defendant was then called upon and elected to neither give nor call evidence. That the defendant adopted that course of conduct of course does not assist the prosecution in any way. Consistent with the presumption of innocence it is her right to neither give nor call evidence.
  1. [6]
    The case against the defendant is entirely a circumstantial one which rests squarely on the transcript of the WhatsApp messages set out in Exhibit 4 and the admissions contained in Exhibit 3.
  1. [7]
    It is not alleged against the defendant that she at any time took position of the drug cocaine and therefore of course there is no evidence that she actually supplied that drug to any other person. Indeed Exhibit 2, the prosecutions particulars state:

“The particulars for each count are as follows:

Anna Tu-Uyen Letran sent a series of text messages to Sheena Padua, enquiring about whether Sheena Padua could supply cocaine.  The purpose of the enquiry was ultimately the supply of cocaine to Anna Tu-Uyen Letran’s friend.”

  1. [8]
    The prosecution relies on the extended definition of “supply” under s 4 of the Drugs Misuse Act 1986.  Relevantly s 4(2)(b) provides:

“supply –

  1. (a)
    for part 5A – see section 43A; or
  1. (b)
    otherwise, means –
  1. (i)
    give, distribute, sell, administer, transport or supply; or
  1. (ii)
    ….
  1. (iii)
    doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any act specified in subparagraph (i).”
  1. [9]
    It being a circumstantial case against the defendant, to bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt not only be a rationale inference but also that it be the only rationale inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence it is incumbent to find the defendant not guilty. That of course follows from the requirement that the guilt of the defendant must be established beyond reasonable doubt that is, by establishing beyond a reasonable doubt each and every element making up the charges against the defendant.
  1. [10]
    In paragraphs 1.4 to 1.8 of the written submissions of Mr Power, Counsel for the defendant, it is said:

“Self evidentially, whilst particulars may limit the way in which the offence provision is relied upon by the prosecution, particulars cannot extend the effect of an offence provision.

By its particularization of the prosecution case, the Crown has undertaken to prove the critical part of those particulars beyond reasonable doubt.  When broken down, the prosecution’s particulars for each count are that Ms Letran:

  1. (a)
    had communications with Ms Padua (“the enquiry”), and
  1. (b)
    the purpose of “the enquiry” was to “ultimately” effect a supply of cocaine,
  1. (c)
    to a third party.

The fact that Ms Letran had the relevant communications with Ms Padua is not in dispute.

It is submitted that the evidence on each count is not sufficient to prove matters (b) and (c) of the Crown particulars to the requisite standard.

Further, it is submitted that (b) of the particulars (that Ms Letran’s “Purpose” for her “enquiry” of Ms Padua was to “ultimately” effect a supply of cocaine is not (at least in its term) consistent with the requirements of the offence provision.  For the reasons that are set out later in this outline, it is submitted that the meaning of ‘an act preparatory’ s 4(2)(b)(iii) of the DMA requires more than merely doing any act with an intention of progressing “ultimately” to effect a supply to another.”

  1. [11]
    Mr Power in paragraphs 1.10, 1.11 and 1.12 then makes specific submissions in respect to both charges:

“In relation to count 1, it is submitted that the back and forth of the messages is best characterised as an attempt by Ms Letran to obtain information (perhaps on behalf of another), namely information about what Ms Padua would be prepared to sell cocaine for, if someone decided to purchase some.  It is entirely possible on the evidence that the unnamed “friend” being referred to did not exist and hence particular (c) cannot be established.

In relation to count 2, it is submitted that the back and forth of the messages is best characterised as an attempt by Ms Letran to obtain information (perhaps on behalf of another or perhaps not) about the pricing of cocaine and MDMA, and the whereabouts of a seller.  The state of the evidence is that this information was not acted upon.

In each case, it is submitted that the conduct of Ms Letran is not sufficient to establish the particulars relied upon by the Crown, and in any event, her conduct in each case does not go far enough to disclose a criminal offence under s 6 of the DMA.”

  1. [12]
    Before proceeding further it is appropriate to make the following observations. By reference to Ex 3 it is not in contest that the contents of Ex 4 accurately record the WhatsApp messages between the defendant and Padua on 23, 24 and 25 October 2014 and 4 April 2015. Nor is it in contest that the reference to “rack” and “molly” are references to cocaine and the drug known as MDMA respectively. Nor is it in dispute that references to “eight balls” are references to a quantity being 1/8th of an ounce or 3.5 grams nor that the photographs sent to the defendant by Padua on 23 October 2014 at 10.18 pm was a photograph of a white substance consistent with being cocaine in rock form.  It is also admitted that the phrase “cutting it down” is a common reference to mixing a substance with another to make it less pure.
  1. [13]
    As to the suggestion or proposition that the reference to a “friend” in the October messages might be a ruse of some kind that is, the defendant was really conducting the communications for her own benefit cannot be accepted. The communications make it clear that the defendant and Padua not only knew each other but had a close and even affectionate relationship. By way of examples, Padua on 23 October 2014, in addition to communicating about the drugs also enquired about the defendant’s job (at 10.20 pm). On various occasions the defendant when communicating with Padua used what are clearly terms of affection including “Okay bbygirl” (24 October 2014, 9.14 am); “Hopefully bbygirl” (24 October 2014, 5.20 pm). In response to a message from Padua namely “Thanks for being the middle woman bbygal x” (5.06 pm) the defendant replies “Yeah it’s okay babes”. On 25 October 2014 in a totally unrelated communication the defendant sends the following message “See you soon babygirl” (11.17 pm) and Padua responds “See u soon cxx” (11.27 pm). Finally, in respect of Count 1 on this issue, when the defendant advised Padua that she was home sick, Exhibit 1 records a message from Padua that she would send a voice message to “cheer her up”. Padua also tells the defendant “U R cute babes”.
  1. [14]
    Turning briefly to the communications on 4 April 2015, the circumstances where the defendant had apparently been kicked or locked out of a nightclub she asked Padua for help (2.57 am). Padua was apparently unable to help because she was “too fuxked to do anything” (2.58 am).
  1. [15]
    Given the nature of the relationship revealed it would be irrational to infer that the defendant, when referring to a “friend”, was lying to Padua and was not in fact acting for a third party, but on her own behalf. That conclusion is supported by the fact that it would be highly unlikely that the defendant would go to so much trouble to fabricate a number of details about the so-called “friend”. Including when the friend finishes work (23 October 2014, 10.18 pm), changing the quantity of the drugs required (5.03 pm), identifying that another supplier “Jonathan” will sell drugs at a cheaper price (5.04 pm) and saying that she does not know if her friend is “honest” (5.05 pm).
  1. [16]
    The content, nature and tone of the communications between the defendant and Padua on 23 and 24 October satisfies me beyond reasonable doubt that when the defendant represented to Padua that she was acting on behalf of a friend she was in fact acting on behalf of a third person.
  1. [17]
    Turning then to the same submission concerning the communications on 4 April 2015, for the reasons given concerning the earlier communications I am also satisfied beyond reasonable doubt that when the defendant was carrying out negotiations concerning cocaine she was again acting for a third person. As Mr Power quite properly conceded, the prosecution’s case, at least in respect of this aspect of the charge, was on stronger ground in that a particular person was identified. At 2.17 am on 4 April 2015 the defendant sends Padua the following messages:

“Are you selling” 

“Rav bf wants”

“How much”

Mr Power, following an exchange with myself accepted that it would be appropriate for me to proceed on the basis that the reference to “bf” was a reference to either “best friend” or “boyfriend”.

  1. [18]
    For the sake of completeness I should place on the record that I have viewed the entirety of Exhibit 1.
  1. [19]
    Having reached the conclusion that I am satisfied beyond reasonable doubt that the defendant was negotiating with Padua on behalf of another person in respect of both counts, it is then necessary to decide whether the defendant is otherwise caught by the extended definition of supply under the Drug Misuse Act.
  1. [20]
    The transcripts make it clear that in neither of the two counts was the transaction concluded. In respect of count 1 on 23 October 2014 the communications between the defendant and Padua conclude with Padua sending the following message:

“Like I can do tonight but price wise I can’t got (sic) lower than 900ea since she (sic) buying two I’m not making any $” (5.21 pm) Take it or leave it (5.22 pm)”

  1. [21]
    The ultimatum is not responded to.
  1. [22]
    Turning then to the events of 4 April 2015 it is clear that whatever was being negotiated was not resolved because the defendant had been kicked or locked out of the relevant premises and Padua could do nothing about it.
  1. [23]
    In construing s 4(2)(b)(iii) of the Drugs Misuse Act I accept the submission made by Mr Power that I should adopt a cautious approach.  As Gibbs J (as he then was) observed in Beckwith v The Queen (1976) 135 CLR 569 at 576 the meaning of a penal statute must be determined by applying the ordinary principles of construction:

but if the language of a statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences”.

  1. [24]
    In Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 at 139 the High Court relevantly said:

“the established principle of statutory interpretation requiring strict construction of a penal statute, or an Act which affects the personal liberty of the subject”.

  1. [25]
    Mr Power also referred to two more recent decisions of the High Court to which I have also had regard in this context namely North Australian Aboriginal Justice Agency Limited v Northern Territory of Australia [2015] HCA 41 at [11] and Williams v The Queen [1986] HCA 88 at [222].
  1. [26]
    During his closing submissions Mr Spencer put the Crown case in the following terms:

“…Your Honour, under the extended definition of “supply”, “supply” means to give, distribute, sell, administer, transport or supply, or offering to do any acts specified in subparagraph (i), being those acts, or doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any of those acts.  And based on the messages, your Honour would accept that the defendant did an act, that is, she sent the text messages; and that act was for the purpose of supplying the dangerous drug cocaine. ….”

  1. [27]
    After referring me to the Macquarie Dictionary definition of “purpose” as meaning the object for which anything exists or is done, made, used etc. Mr Spencer went on to say:

“Taken at its ordinary meaning, here, the object or reason Letran did the act of sending the text messages was for the cocaine to be supplied to her friends.  That is, she did not send the text messages for any other purpose or reason.  The Crown case is, your Honour, that if you are satisfied that she did supply the dangerous drug, under that extended definition, then you would also be satisfied that she did so unlawfully, as your Honour noted earlier.  If your Honour’s satisfied that the Crown’s proved these two elements beyond reasonable doubt, then your Honour would find Ms Letran guilty of the offences.”

  1. [28]
    It is not in dispute that if I were satisfied to the requisite standard that the defendant had supplied cocaine there was no scope for the potential defence that the supply was lawful.
  1. [29]
    During an interchange between myself and Mr Spencer reference was also made to the phrase to “in furtherance of” for the purposes of s 4(2)(b)(iii) but, it is clear having regard to the evidence and Mr Spencer’s submissions that the case against the defendant was that, for the purposes of that section, she was conducting an act/acts preparatory to the supply of cocaine.
  1. [30]
    Mr Power during his submissions also referred me to the dictionary definition of “preparatory” and “prepare” as defined in the shorter Oxford English Dictionary, 6th Edition.  Preparatory is defined to relevantly mean:  “that prepares or serves to prepare for something following: preliminary, introductory.” And the verb “prepare” is defined to mean: “put beforehand into a suitable condition for some action; to bring to a proper state for use; to get or make ready; fit out or equip.”
  1. [31]
    After referring to those definitions in his written submissions in paras 4.10, 4.11 and 4.12 Mr Power submitted:

“When those definitions are considered, it is submitted that for an act to be ‘preparatory to’ an outcome, the Act must be more than merely taking a step towards an outcome.  It is submitted that for a person to do an act that is preparatory to achieve an outcome, two conditions must be satisfied:

  1. (a)
    that there was intention on the part of the person that a particular outcome occur; and
  1. (b)
    that the intention was put into effect by a means that made that outcome ready to be achieved.

Applying that logic to this offence, it is submitted that for the prosecution to make out an offence utilising the extended definition of supply (as an act preparatory to supply) by a person not in immediate possession of any drugs, the prosecution needs to show

  1. (a)
    that there was intention on the part of the defendant to effect an actual supply that is a s 4(b)(i) supply; and
  1. (b)
    that the intention was put into effect to an extent that the conditions for a supply to take place had actually been established, rather than merely that a preliminary step had been taken towards a possible supply.

In considering the application of that test in this case, it must be borne in mind that the defendant was not in possession of any drugs and hence could not supply another unless those drugs were supplied to her by Ms Padua.”

  1. [32]
    Later in his written submissions Mr Power contended in paras 5.3, 7.1, 7.2, 7.3, 8.1 and 8.2:

“As presently particularised, the communications are relied upon as a whole and so, it is submitted, the critical time when the relevant intention must coincide with action is at the time of the last act of communication by the defendant – including her declining to respond to the final relevant communication by Ms Padua. ……”

In respect of count 1 the following submissions were made:

The highest the prosecution case reaches is to show that Ms Letran has entered into communication with Ms Padua about the pricing and availability of cocaine.  The conversation commences with a discussion, which, if correct on its face, reveals that Ms Letran has no idea at all what cocaine costs.  There is a somewhat farcical air to most of the conversation.  The conversation ends on the apparent note that Ms Letran is decides [sic] not to proceed, perhaps given her discovery of the true price point of cocaine.

The prosecution cannot show beyond reasonable doubt that:

  1. (a)
    that there was intention on the part of the defendant to effect an actual supply that is a s 4(b)(i) supply;
  1. (b)
     that the intention was put into effect to an extent that the conditions for a supply to take place had been established, rather than merely that a preliminary step had been taken towards a possible supply.”
  1. [33]
    In respect of count 2 the following submissions were made:

The analysis of the situation for count 2 is similar to that for count 1.  There is a greater immediacy in the context of the conversations, but the effect of the conversations was for Ms Letran to find out the pricing and availability of certain drugs.

Ultimately what Ms Letran did was to communicate with a person (Ms Padua) who was capable of giving her information about the pricing and availability of drugs on that evening.  Ms Letran could (if she chose) have then provided that information to another.  There was no evidence as to what Ms Letran did with that information.” (emphasis added)

  1. [34]
    Thereafter Mr Power made similar submissions concerning Count 2 and the operation of s 4(b)(i) in terms similar to the submissions made in respect of count 1.
  1. [35]
    At p 41 of the transcript between lines 13 and 46 the following exchange took place:

“His Honour – No.  But a person can be guilty, under 4(2)(b)(iii), absent any actual supply, can’t they?

Mr Power – They can.  But it has to be an act preparatory to an actual supply.  So it can’t be – it’s an act preparatory to (i).  So it can’t be simply something that is possible, or potentially in contemplation; it has to be an act preparatory to an actual supply. And …

His Honour – And what is your – is the short point that, in circumstances where there’s not even a concluded agreement about the price, and, therefore, it must necessarily follow, the movement of drugs from, you know, Sheena to Anna or, at least, the concluded transaction which would see the transfer of the drugs from Sheena to the defendant, where just – the evidence is just left in this hiatus where there’s no concluded agreement; therefore, how could it be preparatory to an actual event?

Mr Power – That’s – yes – that’s my argument.  And the – another way of looking at it is that because it’s left in that hiatus, and because one has to look at the transaction as a whole, and that’s where this – by analogy, this concept of timely withdrawal or removal of aiding exists, because it in the very unusual circumstances – I mean, acts preparatory is normally the person with the drugs doing something to prepare them for supply.  But here it’s a step removed and so, in terms of being an act preparatory, because of that hiatus, the event has not progressed, and inferentially, it’s through the decision of my client, because when it comes to take-it-or-leave it, it’s left, as the state of evidence exists.  And so that’s essentially my argument, and in – in making those submissions as I said I’ve noted that it’s a very different situation for Ms Padua, because the Drugs Misuse Act does criminalise the making of an offer to supply, so – but the prosecution have not sought to rely upon aiding or procuring Ms Padua. …  They’ve said …

His Honour – She’s taken the steps that fall within 4(2)(b)(iii)

Mr Power – That’s so.  And, in my submission, ultimately, when one looks at the dictionary definitions and the caution with which one extends descriptions of criminal conduct, my submission is that it doesn’t reach that mark.  And the argument is, obviously, then, repeated with regard to count 2.”

  1. [36]
    The submission that:

the highest the prosecution case reaches is to show that Ms Letran has entered into communication with Ms Padua about the pricing and availability of cocaine.”

Was made in respect of both counts 1 and 2.  When regard is had to the content of the WhatsApp messages that is clearly not the case.  The communications went well beyond only the issues of pricing and availability of cocaine.  In respect of count 1 there were negotiations about both pricing and volume of cocaine, including variations in the amount required (5.03pm). There was discussion about purity, the cocaine being able to be “cut down” and at or about 10:17 Padua sent a photograph of two “white rocks of powder”. There was also communication about when the transaction should occur.  The defendant told Padua that her friend needed it for the weekend (10.12pm) and that “yeah she wants it tonight so tell me soon” (5.20pm). Further, as I have already indicated for the reasons given, I am satisfied beyond reasonable doubt that on 23 and 24 October 2014 the defendant was acting on behalf of a third party.

  1. [37]
    Turning to count 2, again it is not just a case of availability and price being discussed. Discussion also took place as to where the transaction should occur. Again, for the reasons already given I am also satisfied beyond reasonable doubt that on 4 April 2015 the defendant was acting was acting on behalf of a third person.
  1. [38]
    Turning then to the issue of “timely withdrawal” raised by Mr Power in paragraphs 4.13 and 4.14 of his written submissions it was stated:

“Section 7 (1) (c) of the Code has not been invoked by the prosecution.  Consequently, the matters raised in the next two paragraphs are not strictly relevant. However, a consideration of the concept of ‘timely withdrawal’, of the negation of the effect of prior conduct by an aider are worthy of consideration to assist in determining the meaning of an “act preparatory to” a supply.  This is because, in this particular case, the acts particularised by the Crown only (sic) be seen in the context of Ms Letran’s residual control over the actual consequences of those communications.

It is accepted the matter is not particularised with Ms Letran as an aider.  However, the facts require consideration of a framing of the issues that is analogist to the concept of ‘timely withdrawal’ to determine if the communications do meet the test of being acts preparatory to an actual supply. So at least by analogy, the court must consider if the evidence is capable of negating timely withdrawal by her (White v Ridley (1978) 140 CLR 342) or whether her acts in totality (including her final lack of action) are not sufficient to have aided another (R v Manitti [1985] 1 Qd R 520) such that (when viewed in totality) it cannot be said that her actions constituted “acts preparatory to” a supply of a dangerous drug.”

  1. [39]
    Turning firstly to count 2, following discussions about whether Padua was selling cocaine and Padua indicated that she was and nominated a price (2:22am) the defendant told Padua, in effect, to come to a booth in the premises “now” (2:23am). Padua then indicated that she was not going to do that and that she was “downstairs” (2:25am). Five minutes later the defendant said “okay coming” and then five minutes later “Is Hong an w you”. Thereafter fourteen minutes elapsed before Padua asked the defendant “where r u.” Seven minutes later the defendant advised Padua that she had been kicked out of the premises and a minute later asked for Padua to help her. Padua responded to the effect that she was too fucked up to offer any assistance. About four minutes later the defendant enquires as to why Padua cannot help, and Padua responds “everyone is too fucked” (3.02am).
  1. [40]
    Having regard to those communications the only rational inference open is that there was no intention on the part of the defendant to withdraw from the transaction and that the transaction only failed to come to fruition through circumstances beyond the control of both the defendant and Padua. There is no possibility of an explanation consistent with innocence.
  1. [41]
    Turning then to count 1, after the defendant advised Padua that her friend needed the cocaine for that night Padua responded in the terms identified above and said in respect of price “take it or leave it” (5.22pm). As already identified above, there is no evidence one way or the other as to what occurred after that ultimatum was delivered. To attempt to identify what might have occurred thereafter would be to invite speculation.
  1. [42]
    However, it is not necessary to know what occurred following the ultimatum. By its very terms the extended definition of supply contemplates the situation where no actual supply occurs.
  1. [43]
    The evidence is clearly capable of supporting, and I so find, a guilty verdict in respect of Count 2 for the reasons given. In respect of Count 1, the evidence is also clearly capable of supporting, and I so find, the conclusion that up until 5:20pm or 5:22pm on 24 October 2014 it was beyond reasonable doubt that the defendant was acting as the middle person concerned with securing the supply of cocaine for her friend.
  1. [44]
    The leaves only one issue to be addressed in respect of Count 1, namely Mr Power’s “withdrawal” submission. Just as there is no evidence of the defendant agreeing to the ultimatum, there is no evidence of her communicating or otherwise expressing an intention or desire to withdraw from the prior negotiations. There is no possibility consistent with innocence in this respect.
  1. [45]
    For the reasons given, I am satisfied beyond reasonable doubt that the conduct (acts) of the defendant on 23 and 24 October 2014 and on 4 April 2015 falls within the extended definition of “supply” under the Drugs Misuse Act for the purposes of both Count 1 and Count 2. In both instances the defendant was, on behalf of a third party, arranging for the supply of the drug cocaine. The evidence establishes beyond reasonable doubt that on both occasions the defendant was carrying out acts preparatory to the supply of that drug.
  1. [46]
    Accordingly, I find the defendant guilty of both charges.
Close

Editorial Notes

  • Published Case Name:

    R v Letran (No 2)

  • Shortened Case Name:

    R v Letran (No 2)

  • MNC:

    [2016] QDC 239

  • Court:

    QDC

  • Judge(s):

    Jones DCJ

  • Date:

    13 Sep 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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