R v Truong & Anor[2019] QDCPR 38

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defence pursuant to section 590AA of the Criminal Code 1899 (Qld) for various evidential rulings as follows. 

2. [2]
   Truong applies for:

1. (a)
   The opinion evidence of Detective Wheeler at paragraphs 6 and 7 of his statement dated 19 November 2017 to be excluded;

2. (b)
   All third party communications to be excluded;

3. (c)
   All third party documentary evidence to be excluded;

4. (d)
   The evidence of his conviction at the Richlands Magistrates Court on 9 August 2016 be excluded.

3. [3]
   Luong applies for the following rulings:

1. (a)
   The Optus call charge records as to his geographical location are inadmissible without explanatory expert evidence;

2. (b)
   The evidence of unexplained wealth of the co-accused between 1 January 2015 and 22 February 2016 is inadmissible against the applicant; 

3. (c)
   If the evidence of unexplained wealth is admissible Luong should receive a separate trial;

4. (d)
   The exclusion of evidence that Luong agreed to wear a wire for the police.   

Summary of the case – crown allegations

4. [4]
   The crown alleges^[1] that the accused were trafficking cannabis in wholesale quantities from February 2016 to May 2017.  Truong arranged for the purchase of cannabis from suppliers in Sydney while Luong worked as Truong’s courier travelling to Sydney to collect the cannabis and transporting it back to Brisbane at Truong’s direction.  Luong would typically catch a flight to Sydney to collect the cannabis, driving back with the cannabis in a rental car hired in Sydney.  A total of 70 trips were identified from 12 February 2016 to the police intercept on 21 May 2017. 

5. [5]
   In the lead up to 21 May 2017 Truong liaised with his Sydney suppliers for the purpose of purchasing a significant quantity of cannabis and arranged for Luong to travel up and collect it. Truong discussed issues of quantity, pricing and moisture using poorly coded terms like “eggs”, “tables” and “chicks” when referring to the cannabis.

6. [6]
   At 9.45am on 19 May 2017 Luong arrived at a warehouse at 22 Notar Drive, Ormeau where he met with Truong. Luong called Truong when he arrived but only stayed at the address briefly, leaving at 10.10am.

7. [7]
   The next day on 20 May 2017, Luong arrived at the Brisbane airport before lunchtime and caught Qantas flight 529 from Brisbane to Sydney departing at 1.05pm. On arrival Luong rented a Kia Carnival from Hertz Hire Cars at Sydney airport. He then travelled to an unknown address in Sydney where he collected cannabis before driving back to the Queensland border. At 3.55am the following morning, Luong was seen by police travelling north bound towards Queensland on the Pacific Highway near Woodburn. At 4.45am he stopped at the roadside rest area at Tyagarah (near the border with Queensland) and slept in his car. He awoke before 9.00am and continued driving, crossing the border into Queensland just after 9.30am.

8. [8]
   At 9.49am Luong was intercepted by police on the Pacific Motorway at Worongary (just past the Queensland border). Inside the car police located 103 kilograms of cannabis, packaged in 231 Cryovac bags (each weighing about 1 pound) and stored within boxes in washing bags. Luong’s fingerprints were located on a number of the Cryovac bags (count 2). Following the intercept Luong was transported to the Coomera police station where he was formally charged. He declined to participate in an interview.

9. [9]
   At 5.03pm Luong called Truong and Truong asked Luong where he was and said that he was ready to collect the cannabis. When Luong told him about the police intercept Truong reacted with anger and distress and arranged to speak with Luong later.

10. [10]
    Police investigations following the intercept of Luong on 21 May 2017 include vehicle hire records, flight bookings and call charge records leading to the identification of 73 other occasions dating back to 12 February 2016 in which Luong made a trip to Sydney and back in order to bring cannabis into Queensland. Luong kept in frequent communication with Truong throughout the trafficking period.

11. [11]
    Truong’s continued involvement in the protracted trafficking period is also supported by a police search at his address conduct on 22 February 2016 in which police located a single Cryovac bag containing 460 grams of cannabis (about 1 pound) and $20,780 in cash. The $20,780 in cash is to be considered in conjunction with the financial analysis showing Truong earned $319,972 in unexplained wealth the preceding year (January 2015 to February 2016).

The facts – more detail

12. [12]
    The parties have accepted the accuracy of the evidence referred to at paragraphs 8-43 of the crown submissions.^[2]  The inferences to be drawn from the primary facts are not accepted. 

13. [13]
    The crown case is that at the arrangement and direction of Truong (based on inference but also evidenced in messages), Luong would typically catch a flight from Brisbane to Sydney or on some occasions he would drive the round trip from Brisbane. This is determined in the evidence of the call charge records and analysis of Luong’s phone, hire car records and flight records. Variations of his name were used in the bookings.

14. [14]
    Once in Sydney, Luong would book a rental car (if he flew), drive to the Western suburbs of Sydney (evidence of call charge records “CCR” of Luong’s phone) and collect a quantity of cannabis (based on evidence of intercept on 21 May 2017, telephone intercepts, and inference), and then drive the cannabis back to Brisbane (evidence of CCR of Luong’s phone) for delivery to Truong (based on evidence of telephone intercepts and inference).

15. [15]
    The investigation resulting in the charges came about as a result of a joint operation “Radnor Foxcatcher” between the Queensland Police Service and the Australian Criminal Intelligence Commission. The focus of the operation was the alleged drug trafficking and money laundering by the applicant Truong. The investigation included telephone intercepts, surveillance, the financial analysis of the applicant Truong, search of Truong’s residence, and intercept of Luong.

Common purpose

16. [16]
    The evidence of the common purpose enterprise in trafficking in cannabis between Truong and Luong is based on evidence from calls between Truong and Luong on 19, 20 and 21 May 2017, surveillance of Truong and Luong on 19, 20 and 21 May 2017, and the intercept of Luong on 21 May 2017 when he was found with 103 kgs (in 231 one pound bags) of cannabis en route from Sydney to Brisbane. This evidence is set out below.

Intercepted calls – 15 May 2017 to 21 May 2017

17. [17]
    In a call on 15 May 2017 (518), the applicant Truong was talking with an unidentified male, inferred to be a cannabis supplier based in Sydney. The call, in Vietnamese, covered the following discussions:

1. (a)
   The supplier referred to Truong variously as “boss” and “father” and “younger brother”, and said that they were in business together;

2. (b)
   Truong referred to his “friends” leaving as they were “put off” and referred to “showers” and “wet”.  When Truong was asked “will you still come hang out with me? I need to know so I can tell my friends”, Truong responded no he wouldn’t as his “friends” had already left, and the supplier every time had promised that the product wasn’t wet but it had “problems all the time”.  The crown submits the inference is that the applicant was not satisfied with the cannabis product that had been supplied, and nor were his clients and he was not prepared to continue in business with this supplier; 

3. (c)
   The supplier made various assurances, said he had tried his best, and Truong would know “how it was like over here at that particular point of time”. The crown submits this indicates that there had been an issue with the cannabis and the growing season, that was shared knowledge between them because of previous dealings;

4. (d)
   Truong made reference to “you always say guaranteed” and also “when I return it to you”. The crown submits this further confirmed their business dealings in the past;

5. (e)
   The supplier said if “you (Truong) come down here, I guarantee you quality” and offered a 25 cents discount, inferred to be 25% discount;

6. (f)
   Truong said he wanted to charge his battery first and asked if “19” (inferred to be the price in thousands) was okay;

7. (g)
   The supplier indicated his offence at the price offer, swearing at Truong and saying “father you just slapped my face”;

8. (h)
   Truong responded that if other people can do it (for a price of 19) “why can’t you?” The crown submits this indicates that Truong dealt with more than one supplier;

1. (i)
   The supplier repeated that it was a slap in his face and asked Truong to message him when “you get back”. 

18. [18]
    There were two calls that were intercepted on the morning of 17 May 2017, that were conducted in Vietnamese.

19. [19]
    In the first call the applicant Truong referred to “5 tables” where the “food” was “not good” and had to be returned. Truong was asked by the male (inferred supplier), when Truong’s “friend” (Luong) was coming “down here”. Truong responded either today or Friday; which was a reference to Luong’s planned travel to Sydney (referred to below). The supplier said that there were 3 tables available that had no defects like before – the crown submits this indicates that the cannabis was better quality than previous poor quality that Truong had complained about. Truong then booked the 3 tables for Friday at around 8 o’clock. The crown submits the inference is that the supplier is in Sydney, tables is cannabis and the numbers refer to amounts and that Truong’s courier, Luong, was coming down on Friday (19 May 2017) to Sydney pick up the product at around 8 o’clock.

20. [20]
    In the second call, Truong warned the other caller that if the “chicks” were not “pretty” he wouldn’t drive them back “down there”, and the caller would have to come “up here”. Truong discussed issues of “rain” and “wet” and warned the caller. He said the product didn’t have to be a “beauty queen” but it had to be fair and reasonable. Truong complained about not being able to check out the “clothes”^[3] properly when he went to the caller’s place, and warned again if the “clothes” are damaged, the caller would have to come “up here himself”.  Truong asked if “4 tables” would be possible or 3 and a half “or something”.  The caller said “you and I do business together”.  The crown submits the inference is that Truong was talking with his supplier in Sydney, and the mixed reference to clothes and tables is a poor attempt at concealing they are talking about cannabis. It is submitted the inference is clear that Truong was complaining about the quality of the cannabis product and it being wet, and not being about to check it, and that he wanted an order of an amount of 4 or 3 ½ of the drug.  The crown submits the obvious inference is that it is a reference to weight of cannabis, as there is reference to a price in other calls in amounts of 19 or 18 (thousand). 

21. [21]
    In an intercepted call on 19 May 2017, Truong identified himself and referred to the other caller (the supplier) as “older sister”. It is alleged the conversation was about arranging a supply, the quality of it due to the season, the amount (3, 4 or 5; 1 ½ or 2; 130-150 (pound bags)) and the price (18, or 18 1/2 (thousand), payment (paper), and arrangement for Truong to collect it that day. It is submitted by the crown that the use of mixed metaphors and mixed code words – he refers to wanting 3, 4 or 5 tables, bottles of beer and 1 ½ or 2 metres, and she refers to having 130-150 eggs- was a poor attempt at concealing that what they were talking about was cannabis.

22. [22]
    The crown submits Truong was also cautious about talking on the phone, and referred to using a different machine to communicate with, indicating his awareness and concern at avoiding being detected by authorities- an awareness no doubt because of his knowledge of the illicit drug industry, but also having previously been the subject of the search warrant in February 2016 (referred to below).

23. [23]
    The crown submits Truong also self-identified as the principal in the operation – referring to himself as the one who made the decisions.

24. [24]
    In the call, the supplier identified herself as Nhung and referred to Truong as “older brother”. She asked if Truong got her number from a younger sibling “from an older sister’s side”. She said that she got to know Truong by accident and she had heard from Toan or Tham (Thamby was a contact in Luong’s phone, whom Luong rang when in Sydney on 20 May 2017, referred to below). Nhung also said that Toan “takes from me to give it all to you older brother… takes eggs from me”. Truong warned her to “be brief” and made reference to because they were on the phone. She said that she has “more eggs” today if he needed them. Truong responded by asking “how many tables are there?”. The response was as many as he wanted as she had more than 10 today. Truong said he wanted “around 3 large tables”. Nhung said today she could only give him about 100, 130, 140, or something like that…eggs”. Truong said he would normally go for 3, 4 or 5 tables. She acknowledged that but said when she talked to that “older sister” Nhang asked her if she was sure or not so that Nhang would get “more eggs” from other people, but this older sister “wasn’t sure” and “couldn’t decide that”. Truong responded yes “That’s right, (be)cause.. I’m the person who decides that”. Truong asked “do you have that machine we normally use… cause normally don’t talk a lot over the phone”. Nhung suggested instead a meeting in person, but Truong says that he is “up here” and not “down there”. Nhung said the issue she wanted to ask is “are you coming down today?”. Truong said yes. Nhung said that there had been an order placed for “eggs’, but she was hesitant to answer, as “your young sibling asked me to wait a bit… so today I’ve got those”. Truong said whatever number of “bottles of beer” she had he would take them all, okay. Nhung said “yes” and “what time will you come down today so I can… get them ready for you?”. Troung replied to let him talk to his older sister, and “normally I don’t like to talk over the phone but you’ve got to be 100 per cent sure about it”. Truong asked Nhung “But. What is the temperature”. She didn’t understand and asked him to repeat before saying that they were like brother and sister and “let’s talk straight” because they were there for the “long haul” and no need to “beat about the bush”. She said that she knew in “this season” the temperature “always goes down”. Truong referred to hanging out with his friends and knowing about the “hot season” and the cold season” and “there isn’t anyone who doesn’t know about it”. Nhung said “whatever you get from… the other side. I will lower it down a little bit for you”. Truong replied that what he wanted was “18” (inferred to $18,000). Nhung said couldn’t Truong “up it for me cause honestly I give the other side 18”, and “can’t it be eighteen five for this season?” (inferred to be $18,500). Truong said No that wasn’t possible and he was in “full health, you know what I mean?”. He said “each time you go to that side... their health isn’t right”. Nhung replied ok in that season, but at a later time “when the temperature goes up”, “you have to up it a little bit for me”. Truong said he knew the temperature would go further down and it would not go back up again until before Christmas. Truong offered for Nhung to come up and see him, but said he would get his older sister to call her and “for me, it has to be daily”. Nhung said she understood and she just needed to know before hand, that it was from her own family, and even if she doesn’t have it, she will “go gather it for you”. She then said after getting it, what was to happen with the “paper work”, and having to “wait for you to come down to have the papers”. Truong said he (Luong) was “coming down today” and would be there around 7 or 8 o’clock. Truong asked was it “one and a half metre today, or could it be “2 metres”? Nhung asked him if he could wait a bit and she would ring around. She said she would “gather and bring it back for you” and that she would ring him.

25. [25]
    It is in that context I turn to events of the intercept.

Notar Drive, Ormeau

26. [26]
    At 10.59pm on 12 May 2017 Truong had sent Luong a message, continuing to use the eggs/poultry reference that he had used with Nhung. The message Truong sent to Luong was "Are you free tomorrow 11 (am) Come to my poultry opening bro. 22 notar drive, Ormeau” which was Truong’s warehouse. Luong responded he would be there. The CCR of Luong’s phone shows that Luong had travelled to Yatala (the tower near Ormeau) at 11am on 13 May 2017.

27. [27]
    Surveillance conducted as part of the police investigation revealed that on the morning of 19 May 2017 at 9.45am Luong again arrived at Truong’s warehouse at 22 Notar Drive, Ormeau where he met with the Truong. The CCR of Luong’s phone shows that he was at Yatala at 9.44am. Luong was observed by the surveillance to stay at the address briefly, before leaving at 10.10am. The CCR shows that Luong then went to the Willawong and Acacia Ridge areas (the vicinity of where he and Troung lived).

28. [28]
    At 12.11pm on 19 May 2017, Luong sent Truong a message “Can fishing be postponed to tomorrow morning?”. Truong replied “It's been organised... it’s been organised today bro”; however it was clear from further messages and travel of Luong, that the trip did not go ahead until Saturday 20 May 2017.

20 May 2017 – Truong arranging Luong’s travel to Sydney

29. [29]
    At 6.20am on 20 May 2017 Truong sent Luong a message asking where he was. CCR shows that Luong was in Acacia Ridge when Luong called Truong at 7.55am and 8.17am.

30. [30]
    In an intercepted call at 8.34am on 20 May 2017 (1344) Truong asked an unknown male he referred to as “older brother” “where’s the bag of clothes that eldest sister bought for me yesterday?” (a reference to the previous call with Nhung). The other male asked is it that bag of clothes (drugs) or bag of papers (payment). Truong asked about both. The other male said he gave the papers to the guy “what’s the name?” and put the clothes in the storeroom. Truong said “you must keep them in the house, if not… they will get damaged”. The other male said he had been waiting for “you”.

31. [31]
    At 8.56am on 20 May 2017, Truong sent Luong a message “Just after lunch go?... or u wana go now n meet at my sis hour for fishing? And Remember meet at Ly house.”

32. [32]
    The crown submits this is one of the calls that demonstrates that Truong was directing Luong as to his travel arrangements – in this case to head to Sydney. CCR shows that Luong called Truong at 9.48am, 10.38am and 10.43am when Luong was in the Acacia Ridge area (near where he and Truong lived).

33. [33]
    In an intercepted call at 9.30am on 20 May 2017 (1364) from Truong to Nhung, Truong said “older sister” “sorry about yesterday… yesterday I told my younger brother (Luong) to get ready to go fishing (ie Luong going to Sydney to collect the cannabis). In the end… I went to bed and … I didn’t call him to give him the okay, so he hasn’t gone yet (showing that Truong self identifies as the principal and is directing Luong’s travel arrangements)... he’ll head off in about an hour” (referring to Luong’s flight arranged for 11.59am). Truong said he (ie. Luong) wouldn’t arrive for another hour or 2 ½ (CCR shows Luong was in Sydney (Little Bay at 2.28pm)). Truong asked how many “tables” (the crown says an amount of cannabis) there were. Nhung said “about 180” (the crown says it is inferred to be pound bags). Truong asked where there were so few and aren’t there more?. Nhung said that she went to that place yesterday and the “eggs” were “too young” and she couldn’t get them (the crown says it is inferred to be immature cannabis plants or they were not ready to be supplied).

34. [34]
    Luong arrived at the Brisbane Airport before lunch time on 20 May 2017. An intercepted call at 12 noon on 20 May 2017 was from Truong to Luong’s phone, which was apparently accidental: there was no conversation only Luong saying “hello” a number of times. It was clear that Luong was at the airport at the time as the call recorded the loud speaker at the airport announcing the gate and the boarding time for a flight before the call was terminated. CCR of Luong’s phone shows that he took this call when he was at the Brisbane airport at 11.59.58am (on 20 May 2017).

35. [35]
    Luong then caught Qantas Flight (QF-0529) from Brisbane to Sydney, which departed at 1.05pm. On arrival in Sydney, Luong rented a Kia Carnival (registration CKO 4MT) from Hertz Hire Cars at Sydney Airport. CCR shows he was at Mascot at 3.08pm. The CCR of Luong’s phone also shows that when Luong was later at Wetherill Park and Cabramatta he made calls to contacts in his phone “Thamby” (similar name referred to in intercepted call between Truong and Nhung above) and “Chilly”, at 3.53pm and 5.19pm respectively. The CCR shows Luong’s phone bouncing off cell towers in Sydney to the western suburbs including Cabramatta and Revesby before heading north along the Pacific Highway as he returned to Queensland.

36. [36]
    There were also searches on Luong’s phone (by him) for addresses at Revesby (western Sydney) which matched a destination that his CCR revealed he visited on 20 May 2017 and 3 prior visits to western Sydney (on 15 July 2016, 17 October 2016 and 24 October 2016).

Surveillance and intercept 21 May 2017

37. [37]
    At 3.55am on 21 May 2017, Luong was observed by surveillance to be travelling northbound (towards Queensland) on the Pacific Highway near Woodburn in New South Wales. At 4.45am he was observed to stop at the roadside rest area at Tyagarah (near the border to Queensland) and slept in his car. He awoke before 9.00am and continued driving, crossing the border into Queensland. The CCR of Luong’s phone confirmed his travel up the Pacific Highway from Cabramatta and showed that he was in the Tyagarah / Byronview area for a time until 9.05am when he started heading north through Mullumbimby and Mooball areas.

38. [38]
    Luong’s CCR also shows that at 9.33am when he was at Tweed City, he called Truong. This was 10 minutes before he was pulled over by police.

39. [39]
    At 9.49am on 21 May 2017, Luong was intercepted by police along the Pacific Motorway at Worongary (just past the Queensland border, noted to be at Mudgeeraba tower on CCR). Inside the hire car, police located 103 kilograms (227 pounds) of cannabis packaged in 231 bags of approximate 1 pound amounts in Cryovac bags and stored within boxes and washing bags. Luong’s fingerprints were located on a number of the Cryovac bags.

Arrest of Luong

40. [40]
    Following the intercept, Luong was transported to the Coomera Police Station at about 10.20am (shown as Helensvale and Ormeau on CCR). He was arrested and charged, but declined to participate in an interview but agreed to assist police as a witness by utilising a covert recording device. He was taken to the Brisbane watch house at about 1.25pm (shown as Petrie Terrace and Brisbane CBD on CCR). He was released from the Watch house later that afternoon and driven to his house at Giancarlo Crescent Doolandella (shown as Inala, Willawong and Acacia Ridge on CCR). He remained there overnight (also shown on CCR).

Calls between Luong and Truong 21 May 2017

41. [41]
    On the day of Luong’s arrest when he should have been returning with the cannabis, Truong had tried to call Luong 22 times from 6.32am to 4.39pm (missed calls 901-937) and sent two messages at 4.21pm and 4.30pm (IMS 161). This demonstrated that after the last call at 9.33am, Truong was making great attempts to contact Luong and trying to keep tabs on him at a time that Luong should have been returning to Brisbane with the cannabis, but, unknown to him, was instead in police custody.

42. [42]
    At 5.03pm on 20 May 2017, Luong called Truong, which was an intercepted call. It was the first call that Luong had made since he was arrested that morning. CCR shows that Luong was in the Inala area (at home at Doolandella) when he made this call. During the call Luong told Truong that the “basket of clothes” was at “eldest brother’s house”. Truong did not understand what he was talking about (i.e. the code used). It was not until Luong said “today I got into trouble with the Police”, that Truong clearly understood what he was then saying, and reacted with anger and distress and arranged to speak with Luong once he got home.

43. [43]
    The crown submits the inference is clear that Luong was reporting to Truong that the cannabis he had collected and was transporting for Truong to Truong, had been seized by police, and this call (in view of the previous intercepted calls and surveillance and intercept of Luong) is clear evidence of the common purpose of trafficking between them.

44. [44]
    Luong later (7.00pm) called the investigating officer and said that he had not met with anyone and he no longer wanted to assist police. Police attended the next day to retrieve the covert recording device and to carry out a search and seized Luong’s phone, which was subsequently analysed.

An overview of the flight and rental car and Call Charge Records 

45. [45]
    Flight and rental car records, when read in conjunction with the location data in Luong’s CCR demonstrate that Luong made 74 trips to and from Sydney from 11 February 2016 to the final trip on 20-21 May 2017, when he was intercepted. Given the manner in which all of these trips were taken were the same as the trip taken on 20-21 May 2017, the inference can be drawn that each of trips was for the same purpose of collecting and transporting cannabis, in furtherance of the common purpose.

46. [46]
    CCR of each of the applicant’s phones and the Cellebrite download of Luong’s phone show that Luong and Truong were in frequent contact during the relevant time, and included messages using codes. It is clear that Truong was using at least 2 phones – being 0473 087 658, and 0402 170 970 (as nominated by Truong to police on 22 February 2016).

47. [47]
    The CCR as to Luong’s mobile telephone provide evidence of Luong’s general location (through GPRS), that demonstrate 74 trips over the relevant period from Brisbane to Sydney, with his destination being western Sydney area, including Bankstown, Cabramatta, Punchbowl, Strathfield, Ryde, Fairfield, Bass Hill, Burwood, Granville, Chester Hill, Baulkham Hills, Parramatta, Revesby and Rooty Hill before his return to Brisbane, to the western suburbs, where he and Truong both lived.

48. [48]
    The CCR as to Luong’s location is supported by:

1. (a)
   Flight and rental car records for Luong dating back to February 2016 showing that:

1. (i)
   He regularly booked flights from Brisbane to Sydney, and once in Sydney, immediately rented a hire vehicle drove to Western Sydney before driving back to Brisbane;

2. (ii)
   He would also hire cars in Brisbane and dive to Sydney, to the western Sydney suburbs before driving back to Brisbane;

3. (iii)
   Surveillance of Truong that showed when Luong visited Truong’s address at Notar Drive, Ormeau (Yatala on CCR);

4. (iv)
   The surveillance of Luong travelling on the Pacific Highway, and his intercept over the Queensland border, arrest and transport to Coomera station and then the Brisbane watch house, before his release and transport home to Doolandella. 

49. [49]
    The first 3 return trips by Luong to Sydney on 11, 15 and 19 February 2016, preceded the date of a search warrant on Truong’s house at 48 Gleneagles Crescent, Oxley on 22 February 2016. During that search, police located 433 grams (a pound) of cannabis packaged within a single Cryovac bag and $20,780 in cash. Truong told police the cannabis was his and was for personal use for anxiety. He also told police during the search that he and his wife Karel and children were moving out to their house at Inala in a week.

50. [50]
    Truong pleaded guilty to possession of cannabis on the basis of personal use, in the Richlands Magistrates Court on 9 August 2016. He received a $2,000 fine.

51. [51]
    Immediately following this police search, there was a significant period of time in which Luong ceased travelling to Sydney. The crown submits this was obviously due to the attention from the authorities. There was a rental on 23 February 2016 (the day after the search) and a further trip on 25 February 2016, and then no further travel to Sydney until 3 April 2016.

52. [52]
    The first call that Truong made to Luong in relation to the trips that Luong made, was in relation to the 13th trip of Luong on 15 May 2016, being a Qantas flight to Sydney, where he hired a car, drove to Cabramatta before returning to Brisbane via the Pacific Highway the next day. Truong had sent a message to Luong regarding his flight on 15 May 2016 (SM 3742).

53. [53]
    Similarly on 1 June 2016 (the 20th trip), Truong sent Luong a message about the flight (Jetstar to Sydney) being at 7.30, not 6.30. Luong had spoken with Truong on the night before he left, and also spoke with him when he was in Sydney. Luong hired a car in Sydney, and the CCR shows he drove to Cabramatta and then returned to Brisbane via the Pacific Highway the same day.

54. [54]
    It is submitted these calls evidence that Truong was involved in arranging Luong’s travel, which support the case that Truong was the principal and Luong was the courier for Truong in the trafficking enterprise.

55. [55]
    Additionally, in the year preceding (1 January 2015 to 22 February 2016) the search of Truong’s residence on 22 February 2016 (but overlapping the trafficking period) a financial analysis revealed that Truong earned $318,972 in unexplained wealth.

56. [56]
    The crown relied on the affidavit of Julia Canning filed 24 July 2019^[4] and a further affidavit of Julia Canning sworn 25 July 2019.^[5] 

57. [57]
    I have paid full regard to the affidavits.

Officer Wheeler

58. [58]
    Officer Wheeler in his statement gives opinion evidence as to conversations on 17 May 2017. The phone conversation at 8.40am on 17 May 2017 is a conversation recorded between Truong and an unknown person. During that conversation Truong referred to “five tables where the food were not good and had to be returned”. He then asked “how many tables are there today?” and the unknown person conveyed to him there were 3 tables to go eat and drink at. Truong then confirmed he had 3 table available. Wheeler opines that the reference to tables in the call is code for 50 pounds of cannabis.

59. [59]
    The phone conversation at 10.42am on 17 May 2017 is a conversation recorded between Truong and an unknown person. During that conversation Truong told the unknown person “I don’t like to wear a raincoat, I’m warning you”. Later in the same call Truong said “Each time I come around to your house your boys don’t want to show me the clothes properly, you know. Cause if they do, it’d take at least 5 or 6 hours you understand”. Wheeler opines that the reference to raincoat and it taking 5 or 6 hours is reference to the cannabis being wet and requiring drying prior to distribution.

60. [60]
    In the same telephone conversation Truong asked the unknown person if there were 4 tables and this was agreed. Wheeler opines that the reference to 4 tables is code for 200 pounds of cannabis.

61. [61]
    The crown has also obtained a statement from Officer O'Hara^[6] dated 23 July 2019. In this statement Officer O'Hara gives evidence of his extensive experience with drug investigations.  He also has examined the telephone intercepts in this matter. He gives evidence that:

1. (a)
   In the conversation dated 13 June 2016 between Van Nguyen and Dinh Nguyen the “goods” and “tables” referred to 10 pounds of cannabis.^[7]

2. (b)
   In a conversation between Thi Pham and another Vietnamese male on 10 February 2019 reference to guests and serves and halves and tables is a reference to 110 pounds of cannabis.^[8]   

3. (c)
   In a conversation between Thi Pham and another Vietnamese male on 6 February 2019 reference to tables is reference to cannabis.^[9]

4. (d)
   In a conversation between Thi Pham and Van Pham on 1 January 2019 reference to chickens is a reference to cannabis.^[10]

5. (e)
   A consistent code used by Vietnamese drug traffickers referring to price is a reference to “temperature.”^[11]

6. (f)
   Wholesale prices of cannabis have varied greatly over the past five years and is varies between states.^[12] A conversation between Thi Le and Manh Tran on 25 February 2019 shows the difference between prices in Sydney and Brisbane.

7. (g)
   As to the call on 12 May 2017^[13] the reference to “stuff” is a reference to the quality of the packaged cannabis.^[14]

8. (h)
   As to the call on 15 May 2017^[15] this call refers to the quality of cannabis supplied.^[16] The reference to “19” is a reference to price, namely $1900 per pound.^[17]

1. (i)
   As to the call on 17 May 2017^[18] the reference to 3 tables is a reference to 30 pounds and the reference to the “chicks are pretty” relates to the quality of the pounds.^[19]

10. (j)
    As to the call on 17 May 2017^[20] the reference to the “chicks are not pretty” is a reference to poor quality. The reference to “rain drizzling” is reference to condensation on the product and cannabis was referred to as “clothes”. Six hours relates to drying time.^[21]

11. (k)
    As to the call on 19 May 2017^[22] the reference to 3 tables is a reference to 30 pounds, and he had not heard the term eggs before but thought it was likely to be a pound of cannabis.^[23]  He further believed that a portion of the call related to negotiations as to the price Truong was prepared to pay.^[24]

12. (l)
    As to the call on 20 May 2017^[25] the reference to “clothes” is a reference to cannabis. Reference to “papers” is a reference to money.^[26]

13. (m)
    As to the call on 20 May 2017^[27] he believes a portion of the call relates to the supply of cannabis.^[28]

14. (n)
    As to the call on 21 May 2017^[29] he believed this call showed that Truong intended to collect more cannabis.^[30]

15. (o)
    Finally as to the call on 21 May 2019 (sic)^[31] the clothes is a reference to cannabis.^[32]

Evidence of police

Submissions

62. [62]
    Truong^[33] and Luong^[34] submit that the prosecution bears the onus of establishing the admissibility of opinion evidence.  It is submitted that Wheeler’s evidence does no more than establish that persons dealing in drugs sometimes use code.  This fact is within normal human experience and is not a field of specialised knowledge.  It is submitted that the words in the conversation are capable of interpretation without expert evidence.  In the circumstances his evidence is inadmissible opinion evidence.

63. [63]
    The crown on the other hand submits^[35] that whilst the investigating officer cannot give evidence as to the ultimate inferences that can be drawn from the evidence, it is clear that what is included in the officer’s statement were statements for the assistance of the jury in understanding the evidence.  It is conceded that the investigating officer may not be able to give opinion evidence regarding the ultimate meaning of particular code words but he would be able to give evidence of: 

1. (a)
   The use of telephone intercepts as an investigative tool;

2. (b)
   The telephone conversations in the illicit drug trade typically innocuous code words in order to avoid detection;

3. (c)
   Words that are relevant in the illicit drug trade that are typically exchanged for code words and examples such as the name of the drug, price, weight and arrangements for delivery and supply;

4. (d)
   The nature, quality and source of cannabis as a commodity in the illicit drug trade, including its production, the difference between wet and dry and the typical weights that cannabis is traded in, its value and origin. 

64. [64]
    It is submitted that the police officer’s evidence is admissible opinion evidence.

Disposition

65. [65]
    Courts on other occasions have considered the admissibility of police giving expert evidence as to the meaning of drug terminology, the value of drugs and distribution networks involved with drugs. See for example R v Marinovich,^[36] Anderson v R,^[37] R v Morrison,^[38] R v Blackwell,^[39] R v Fazio,^[40] and Marchesano v R.^[41] 

66. [66]
    In Keller v R^[42] the New South Wales Court of Criminal Appeal was concerned with an officer of the Australian Federal Police giving interpretive evidence as to telephone intercept material.  At [23] the court noted: 

“Although the issue presented on the admissibility question on the voir dire proceedings appears to have been whether the witness could give evidence that the language employed in the intercepted conversations was consistent with being language referable to a drug transaction, that is not the way in which the evidence was given before the jury.  Mr Odgers acknowledged that if the witness had limited himself to expressions of opinion as to the consistency of the language used being referable to a drug dealing, the appellant would have no complaint.  I consider Mr Odgers was correct in making that concession.”

67. [67]
    In my view it is impermissible for a police witness to positively state the drugs were being referred to. It is also impermissible for a police witness to express an opinion as to the meaning of a conversation.^[43]

68. [68]
    In my opinion however the officer is permitted to give evidence about code words being used and the types of those code words and that particular words were consistent with drug dealing. In my view expressing a positive view that the conversations were about drugs would be evidence which would infringe the ultimate issue rule. It is permissible for the officer to say that the relevant conversations are consistent with talk about drugs or could be about drugs.

69. [69]
    Also an officer could give evidence as to prices of drugs and of the nature, quality and source of cannabis as a commodity in the illicit drug trade, including its production, the difference between wet and dry and the typical weights that cannabis is traded in, its value and origin.

Third party evidence

Submissions

70. [70]
    It is submitted by Truong^[44] that the crown cannot establish a common unlawful purpose between the applicant and Luong to import cannabis from New South Wales to Queensland from 11 February 2016.  It is submitted that the crown relies upon calls between 19 and 21 May 2017 and the ultimate interception of Luong on 21 May 2017.  It is submitted that the telephone call (call number 1525) on 21 May 2017 taken at its highest is not sufficient to prove any common unlawful purpose between Truong and Luong.  At most it refers to Luong being intercepted by police.  The crown also relies on other calls on 19 and 20 May 2017.  It is submitted there is nothing in the calls on 19 May 2017 which would lean one to the conclusion there was a common unlawful purpose between them.  Similarly with respect to the calls on 20 May 2017 they are not sufficient to prove any common unlawful purpose.  With respect to the surveillance evidence, whilst it is true Luong met with Truong prior to him driving to Brisbane Airport and flying to Sydney that does not prove a common unlawful purpose.  Even if the court found there was a common unlawful purpose, the evidence is insufficient to show that the acts were in furtherance of such a purpose.  It is submitted the flights were booked in the name of Luong and vehicles hired in his name.  Luong made 74 trips to and from Sydney.  There is no evidence as to what he did on those trips and they did not all follow the same sequence as to what happened between 20 and 21 May 2017.  It is submitted that the crown has failed to prove Truong was a participant in a common unlawful purpose and as such any third party conversations and documents should be ruled inadmissible in his trial.

71. [71]
    In oral submissions Ms White repeated these matters and submitted that there was a significant gap between February 2016 and May 2017. It could not be proved her client was involved in any trafficking during that period.

72. [72]
    The crown on the other hand submits^[45] that the evidence supports a circumstantial case supported by direct evidence that each of the applicants was involved in the common purpose of trafficking and drugs.  It is submitted the evidence supports the conclusion that Luong’s role was as courier driving to Sydney in order to collect the supply of cannabis and then driving the cannabis back for delivery to Truong for the purpose of distribution.  All of the evidence it is submitted is probative and admissible to prove the applicants were involved in drug trafficking.

73. [73]
    In oral submissions with respect to reasonable evidence of pre-concert the crown particularly relied on the following facts:

1. (a)
   The similarity of packaging of the cannabis found in Truong’s possession in February 2016 with the cannabis seized in May 2017;

2. (b)
   The $20,000 found In Truong’s possession in February 2016;

3. (c)
   The text message and phone contact between them between February 2016 and May 2017;^[46] and

4. (d)
   The events of May 2017 including the phone calls between them and the meeting at Ormeau.

Relevant law

74. [74]
    In Tripodi v R^[47] it was held by the High Court:

“When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case.

…

It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or pre-concert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts.”

75. [75]
    Pre-concert does not need to be established beyond reasonable doubt. Rather, the test is whether there is reasonable evidence of the applicant’s participation in the common design.^[48] 

76. [76]
    The courts have noted that there is often no direct evidence of pre-concert. Pre-concert may be derived by circumstantial evidence. In R v Kelly,^[49] McPherson JA said:

“The question for the jury at the trial was whether, despite the precautions taken to distance him from the sales, Kelly was proved to be a party to those transactions, which were the original evidence or res gestae relied on by the crown to establish Kelly’s part in the conspiracy to supply amphetamines to Shelley.

The acts including statements of one conspirator in performing their agreement are admissible against the other once reasonable evidence of the “preconcert” is adduced… Here, the evidence involving Kelly in the sales by Coss, of which I have given only a broad outline, plainly established beyond reasonable doubt that Kelly was a party to such an agreement. It was an issue for the jury to determine as a matter of inference from the proved facts. In doing so, they were entitled to act on the principle that the repetition of acts and occurrences is, as Dixon J said in Martin v Osborne (1936) 55 CLR 367, 376:

  “… often the very thing which makes it probable that they are                accompanied by some further fact. The frequency with which                             a set of circumstances recurs or the regularity with which a                                           course of conduct is pursued may exclude, as unreasonable,                             any other explanation or hypothesis than the truth of the fact                             to be proved.””

77. [77]
    The court needs to be satisfied that there is reasonable evidence the applicant was a participant in a common purpose with others.^[50]

78. [78]
    In R v Davidovic^[51] the Full Court of the Federal Court noted that in considering this sort of application the court is entitled to have regard to all of the evidence to determine the mode of operation and the extent of the common purpose.  Davidovic is also authority for the proposition that one should not look at particular pieces of evidence in isolation.

79. [79]
    Also in Tsang v DPP (Cth)^[52] the Victorian Court of Appeal held that statements made and acts done by one defendant in the absence of another may be admissible in three possible ways:

1. (a)
   Applying Tripodi – not as an exception to the hearsay rule but as circumstantial evidence relevant to either the prosecution or defence case.  Admissibility on this basis does not require proof of a common purpose, or that the statements are in furtherance of an agreement between the defendant and others to commit an offence.

2. (b)
   Applying Louden^[53] the statement or acts may be admissible not as an exception to the hearsay rule but as original evidence going to prove that the defendant entered into an agreement with others to do the unlawful act the subject of the charge.

3. (c)
   Applying Ahern – the statements or acts may be admissible as an exception to the hearsay rule as evidence of the truth of the statements made in the absence of the defendant.  Whilst this applies in charges of conspiracy it also applies where the prosecution case is that other substantive offences have been committed by persons acting in concert.

Disposition

80. [80]
    I accept the crown submissions.

81. [81]
    It is my opinion that considering all of the evidence it has been established by the prosecution there is reasonable evidence of pre-concert aside from the third party communications.

82. [82]
    The evidence supports a strong circumstantial case supported by direct evidence that the applicants were conjointly involved in the common purpose of trafficking cannabis.

83. [83]
    It may be inferred that Luong was the courier travelling to Sydney in order to collect cannabis to drive it back to Brisbane to provide Truong for the purpose of distribution.

84. [84]
    The common unlawful purpose is evident from the direct evidence and also from inferences that can be drawn from that evidence.

85. [85]
    It is my assessment that the calls between Truong and Luong were 19, 20 and 21 May 2017, the surveillance of Truong and Luong on 19, 20 and 21 May 2017 in particular the intercept of Luong on 21 May 2017 when he was found with 103 kilograms cannabis en route from Sydney to Brisbane and his instructive call to Truong on his release from police custody go to prove the common purpose of trafficking in cannabis.

86. [86]
    My assessment of the calls is that it may be readily inferred Truong knew what Luong was doing.^[54]

87. [87]
    The jury could come to the conclusion the 73 other trips undertaken by Luong were largely replications of the last trip with the inference they were all trips by Luong for the purpose of obtaining cannabis to return to Brisbane.

88. [88]
    It is also clearly an inference available that the telephone intercepts of Truong and messages between he and Luong that Truong was the principal organiser liaising with drug suppliers in Sydney as to the amount and cost and arranging travel for Luong as the courier. These arrangements were evident from his own messages to Luong as early as May 2016. Additionally, the evidence of the search of Truong’s home in February 2016 at the beginning of the trafficking period, provides circumstantial evidence of the trafficking enterprise because this can be linked inferentially to the three earlier trips of Luong to Sydney during the trafficking period.

89. [89]
    Whilst only one pound of cannabis was located at Truong’s property in February 2016 it was a single Cryovac bag and there was no drug use indicia found in the search and it may be inferred that it was for a commercial purpose and not for personal use as claimed by Truong. It is also noteworthy that over $20,000 was located with the pound of cannabis and is comparable to the prices (in code) referred to by Truong in the telephone intercepts with the Sydney drug suppliers in May 2017 including references to 19 (thousand) and 18 (thousand).

90. [90]
    Additionally contrary to what Luong states, the 231 bags of cannabis which were seized in the intercept of Luong on 21 May 2017 were packaged in remarkably similar bags to that which was seized on 22 February 2016 from Truong’s house. Additionally, each of the 231 bags seized on 21 May 2017 weighed approximately one pound (ranging in average from 441 grams to 448 grams) which was the same amount that was seized on 22 February 2016 from Truong’s house.

91. [91]
    In my respectful view there is therefore sufficient evidence of preconcert. In my view the third party evidence and documentary evidence is admissible and should not be excluded.

Conviction of Truong on 9 August 2016

Submissions

92. [92]
    Truong submits^[55] that evidence of his conviction on 9 August 2016 should be excluded.  In effect it is submitted that it was accepted that the cannabis was for Truong’s personal use. 

93. [93]
    The crown submits that not only was a pound of cannabis found at his home in February 2016 but also $20,780 in cash was located at the same time. This is part of the $318,972 unexplained income evidence the crown seeks to lead at trial. Truong admitted to the possession of cannabis and told police of his phone number.

94. [94]
    The crown intends to play evidence of the search warrant recording at the trial and there will be no need to refer to his conviction because Truong admits to the possession in the recording. Truong alleges that the cannabis was for his personal use. The crown submits this is a lie bearing in mind the $20,000, the unexplained wealth and the comparable packing to the cannabis seized from Luong on 21 May 2017.

Disposition

95. [95]
    It is my opinion at this point in time the crown is not entitled to lead the fact of Truong’s conviction.

96. [96]
    The crown can lead the evidence leading to the conclusion that he was in possession of the cannabis.

97. [97]
    If however Truong challenges this then by way of rebuttal it may be that the crown can lead the certificate of conviction.

98. [98]
    Also there may be tactical reasons for the defence to lead evidence of the conviction.

Unexplained wealth evidence

Evidence

99. [99]
    Sharon Raabe a Principal Financial Investigator with the Crime and Corruption Commission has provided an affidavit sworn 11 April 2017.^[56]

100. [100]
     In this affidavit she swears that examined the financial affairs of Truong in the period 1 January 2015 and 22 February 2016. She concluded there was unexplained wealth of $318,972.^[57] This sum includes the $20,780 seized by police on 22 February 2016.

Submissions

101. [101]
     Luong submits^[58] that the unexplained wealth evidence is inadmissible against Luong.  It is submitted that the leading of this evidence would be prejudicial to him.  It is submitted a separate trial should be ordered.^[59]

102. [102]
     In oral argument the defence relied on R v Darby.^[60]

103. [103]
     The crown submits^[61] that the evidence of Truong’s unexplained wealth totals $318,972 accumulated between 1 January 2015 and 22 February 2016.  It is circumstantial evidence relied on to prove his guilt.  The purpose of the unexplained wealth evidence shows Truong’s illicit enterprise and profit during the trafficking period. 

104. [104]
     Any prejudice to Luong can be dealt with appropriately by directions of the trial judge. The reality is this is a strong, if not overwhelming circumstantial case against each applicant, and no prejudice arises from this evidence to Luong.

Disposition

105. [105]
     Section 597B of the Criminal Code 1899 (Qld) reposes in the court a discretion to order separate trials where more than one accused is charged on the same indictment.

106. [106]
     I agree with the crown’s submissions here. It is my view there is a significant circumstantial case against both applicants. I have ruled that the acts and declarations of third parties are admissible against each of the accused. The bulk of the evidence is cross admissible.

107. [107]
     Whilst the bulk of the financial evidence is not admissible against Luong (with the exception of an analysis of the money seized on 22 February 2016) directions can be given by the trial judge as to what is admissible or not against Luong. I think such directions remove any prejudice.

108. [108]
     A court is entitled to assume that juries faithfully follow directions given by a trial judge.^[62] 

109. [109]
     This is a case where it is in the interests of justice that both accused be tried together bearing in mind the nature of the charges and the evidence to be lead.^[63]

110. [110]
     I therefore dismiss the application by Luong for a separate trial.

Phone tower evidence

Evidence

111. [111]
     The crown material exhibits records from Luong’s CCRs which purport to show the locations of phone towers near where he was when calls were made.^[64]

Submissions

112. [112]
     Luong in his submissions^[65] submits that the crown relies on Luong’s Optus mobile call charge records, in particular as to evidence of his location at various times during the charge period.  The purpose of the evidence is to provide support for the contention that Luong made numerous trips between Brisbane and Sydney during the trafficking period.  The call charge records include mobile phone tower records.  It is submitted that this data is not necessarily reliable evidence of actual location.  It is submitted that in the absence of evidence from a suitably qualified expert, the evidence is prejudicial, of little probative value and should be excluded.  For example in R v Barakat (No. 7)^[66] Adams J excluded phone tower evidence. 

113. [113]
     The crown submits^[67] that the CCR records of Luong is the best evidence to show that Luong with his mobile travelled from Brisbane to the western suburbs of Sydney and returned on 74 separate and repeated trips.  It is being used by the crown to show a repeated pattern of Luong’s general locations in those 74 trips.  Any limitations to the evidence are obvious and can be explained by Mr Finlay, the Optus witness without the need of an engineer.  The CCR evidence does not stand alone in any event.  It is corroborated by other evidence including flight records, car hire records, search records on the phone, surveillance evidence from 19 to 21 May 2017, the intercept of Luong on 21 May 2017, messages from Truong to Luong and a map that sets out the location of towers.  It is submitted that a pattern emerges from the CCR records as to the 74 trips taken by Luong that is supported by the other evidence.  It is relevant, reliable and probative evidence.

Disposition

114. [114]
     I accept the crown’s admissions here. The jury can analyse the CCR records and make its determination as to the accuracy or otherwise of these. Any defects in the records can be the subject of cross examination of Mr Finlay and of submissions by counsel.

115. [115]
     I consider the evidence relevant, admissible and of reasonable probative value. I do not exclude it.

Luong wearing a wire

116. [116]
     Luong objected to this evidence.

117. [117]
     The crown faintly tried to argue this evidence was post offence conduct capable of amounting to an admission.

118. [118]
     I disagree with the crown. I consider the evidence falls well short of this. It is perfectly understandable a person may agree to do this once charged with an offence aside from belief in their own guilt. It is too long a bow to draw. I exclude the evidence.

Conclusion

119. [119]
     My rulings are as follows:

1.  The evidence of Detectives Wheeler and O'Hara is admissible to the extent referred to in this decision.

2.  The third party evidence is admissible against Truong.

3.  The conviction of Truong is not admitted but evidence of the facts may be lead.

4.  The application for a separate trial by Luong is refused.

5.  The Call Charge Records evidence is admitted.

6.  The evidence that Luong wore a wire is excluded.