R v Truong (No 3)[2020] QDCPR 44

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is a section 590AA application brought by the defence for a ruling that the evidence of the cannabis found at 48 Gleneagles Crescent, Oxley on 22 February 2016 is inadmissible and should be excluded at trial.

Re-opening point

2. [2]
   In R v Truong (No 2),^[1] I dismissed the defence application to exclude the evidence of the cannabis found. One of the reasons for the refusal of the application was that the police were not aware of the importance of the cannabis and the cash at the time of the search, but because of subsequent investigations, their importance has been revealed. The defence has submitted this was a factual error. It is submitted that as a result, s 590AA(3) of the Criminal Code applies such that there are special reasons to obtain leave to reopen the direction or ruling.

3. [3]
   On 5 May 2020, the court received fresh evidence on this point. Exhibit 1 contains an email from Officer Stebbings dated 3 March 2016. It refers to the seizure of the money and the search. The email reveals that Officer Stebbings had checked information given to him by the defendant about Rush Hour Transport. He had checked the registration of the trucks and two of them were unregistered.

4. [4]
   Exhibit 2 is an information report dated 2 February 2016. This report revealed that the ACC was in possession of information that the defendant had customers including an Outlaw Motorcycle Gang. The defendant sourced cannabis from interstate, had three trucks travelling up to three times a week between Queensland, New South Wales and Victoria. He employed Samoan male drivers who were paid in cannabis. He had purchased a house for cash. He had a Filipino wife who purchased tainted property including stolen jewellery and diamonds. In a diary note dated 16 February 2016, Officer Stebbings noted that the defendant was involved with cocaine and heroin, and large sums of cash were involved.

5. [5]
   In the application for the search warrant (Exhibit 3), the things sought included cannabis, heroin and Australian currency. It was revealed that confidential information received disclosed that the defendant housed drugs and later sold them to unknown persons. In an application for authorisation and notification it was noted that Officer Stebbings had received information that the accused was suspected to be heavily involved in the supply of heroin, cannabis and cocaine and that a search warrant was likely to follow. That was dated 17 February 2016 - prior to the search.

6. [6]
   Officer Stebbings also gave evidence that prior to the search he had received information via an intelligence submission. This lead him to obtain the search warrant.^[2] His suspicion was there were going to be drugs at the address. He gave evidence of the cannabis located.^[3] The defendant told him it was for personal use as he smoked it.^[4] After the cash was located the defendant told him the money came from his business and from casino winnings.^[5] No charges were laid concerning the money - this information was handed to another agency.^[6] The officer prepared the QP9 which was marked as Exhibit 4. This was submitted electronically to the prosecutor.^[7]  

7. [7]
   In cross examination, the witness accepted he received the ACC report on 2 February 2016.^[8] He accepted this information informed him that the defendant was a drug dealer and was engaging others to transport drugs to Queensland from the southern states.^[9] He had information the defendant was dealing in cocaine and heroin and was engaged in a commercial drug operation.^[10] Before the search warrant was executed or applied for, he provided information to his inspector that the defendant was involved in the commercial distribution of drugs.^[11] He agreed that some of this information was fed into QPRIME. The prosecutor would have access to this.^[12] He agreed that after the search he had noted on QPRIME the fact that drugs were found as was cash in excess of $20,000 and two mobiles phones.^[13] In the application for the search warrant, he outlined how the defendant was involved in the sale of drugs.^[14]

8. [8]
   After the execution of the search warrant, he made inquiries with the manager of the removal business and discovered some trucks were not operational.^[15] Also he discovered that the defendant’s wife rarely did the banking contrary to what the defendant had told him.^[16]

Decision on the re-opening point

9. [9]
   In light of the information referred to above, it is reasonably arguably that I proceeded on an incorrect factual basis in R v Truong (No 2).^[17]

10. [10]
    In all of the circumstances, as I indicated to counsel, I was satisfied that special reasons had been established by the defence and I gave leave to reopen the ruling concerning the cannabis.

Relevant evidence

11. [11]
    The factual allegations against the defendant are contained in R v Truong (No 1).^[18] The facts relevant to the search are referred to in R v Truong (No 2).^[19] I do not propose to repeat these but rely on the allegations to take the crown case as its highest for the purpose of this application.

Defence submissions^[20]

12. [12]
    The defence submits it is an abuse of process for the prosecution to rely on the possession of the cannabis as a commercial possession relevant to the circumstantial case as it is vexatious and unfair to do so. It is submitted, it is inconsistent with the principle that a judicial determination is binding unless appealed, reopened, quashed or overturned. It is calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue. The defence relies in particular on Rogers v R^[21] as supporting its contention.

13. [13]
    In oral submissions before me the defence submitted that:

1. (a)
   It is irrelevant whether the accused received a “good deal” or not.

2. (b)
   The principle of finality is infringed here.

3. (c)
   Relied on a number of authorities and journal articles.

4. (d)
   Pointed out that the crown had not sought to reopen the Magistrates’ court decision.

Crown submissions^[22]

14. [14]
    The crown, on the other hand, submits that there is no breach of any principle in relation to s 16 of the Criminal Code.

15. [15]
    It is submitted that Rogers v R is distinguishable. It is submitted that in the context of the case, it cannot be considered the crown leading the evidence would be an abuse of process, vexatious, oppressive or unfair.

16. [16]
    The crown submits that the evidence of the search warrant, the recordings with the applicant and the location of the money and drugs is part of the circumstantial case against the defendant in respect of the charge of trafficking.

17. [17]
    It submits:

1. (a)
   it can be linked inferentially to the three earlier trips of Luong to Sydney during the trafficking period;

2. (b)
   while there was only a one pound bag of cannabis located in the search, it was the same amount and packaged remarkably similar to the 231 bags of cannabis seized from Luong on 21 May 2017;

3. (c)
   the $20,000 or so is comparable to the prices in code referred to by Truong in the telephone intercepts with Sydney drug suppliers in May 2017 – including reference to 19,000 and 18,000;

4. (d)
   Truong admitted to possession of the cannabis; and

5. (e)
   Truong also gave his phone number (it was in incorrect order but the same numbers) which is one of the relevant numbers used to contact Luong.

18. [18]
    It is submitted, the evidence from the search warrant is relevant, reliable and probative of the defendant’s conduct during the trafficking period. It is also submitted that statements made by the defendant as to the drug being for personal use are a lie and there is no basis for exclusion.

Discussion

19. [19]
    The question turns on the relevant principles and their application to the facts in this case.

20. [20]
    I firstly turn to R v Rogers.^[23]

21. [21]
    In Rogers, the appellant had been tried before the District Court on four charges of armed robbery. The trial judge conducted a voir dire to determine the admissibility of the relevant parts of three records of interview. The trial judge held on 19 October 1989 that the records of interview were not admissible because the crown had not proved voluntariness. At the trial, the jury convicted Rogers on two counts and acquitted him of the other two.

22. [22]
    On 6 April 1992, a further indictment was presented before another judge containing further counts relating to another eight robberies. The appellant pleaded not guilty to each count. The crown proposed to tender the records of interview which had been excluded in proof of counts on the new indictment. The appellant sought an order that the proceedings be permanently stayed on the ground that there would be an abuse of process. The stay was refused and the matter ended up before the High Court.

23. [23]
    It was held by the majority that the tender of the records of interview would be a direct challenge to the 1989 determination and in the circumstances would be an abuse of process.

24. [24]
    Mason CJ at p 256 noted that proceedings may be stayed if the continuance would be unjustifiably vexatious and oppressive for the reason it is sought to litigate a newer case which has already been disposed of by earlier proceedings. Considerations include the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice.

25. [25]
    In the circumstances, it was held that the attempted use of the records of interview was calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue.^[24] Deane and Gaudron JJ gave similar reasons.

26. [26]
    There is no doubt these principles apply here. It is an exercise of the weighing of relevant considerations. One must weigh into the equation:

1. (a)
   Whether the new proceedings are vexatious, oppressive or unfair.

2. (b)
   Whether the administration of justice be brought into disrepute.

3. (c)
   The public interest in securing convictions.

27. [27]
    I do think Rogers involves a far more serious breach of the principles than in the instant case - there was a direct challenge to the Judge’s ruling. Here any challenge (if it exists) is more indirect.

28. [28]
    The defence also relied on an article written by Kirby J.^[25] Kirby J analysed what he called the 10 foundations for the rule against double jeopardy and I have regard to these. Many are based on statements in R v Carroll.^[26]

29. [29]
    In Carroll, the accused had been acquitted of murder but was retired for perjury arising from the murder trial. The alleged perjury was that he had not killed the victim. The High Court ruled that the trial judge should have stayed the prosecution.

30. [30]
    Relevant principles arising from the case can be said to be:

1. (a)
   It is necessary to keep the power and resources of the State in proper check. This is why there is a principle of double jeopardy.^[27] 

2. (b)
   A fundamental underpinning of the criminal trial is its accusatorial nature.^[28]

3. (c)
   There is a desirability of finality.^[29]

4. (d)
   There must be a confidence in judicial outcomes. Challenging orders made in earlier trials weakens public confidence in the judicial system.^[30]  

31. [31]
    Again it seems to me the result in Carroll was clear - there was a clear breach of the principles of double jeopardy.

32. [32]
    I note, however, that even a verdict of acquittal does not necessarily prevent the institution of subsequent proceedings which casts doubt on an earlier decision.

33. [33]
    At [50] Gleeson CJ and Hayne J said:

“Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z,^[31] R v Arp^[32] and R v Degnan^[33] are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.”

34. [34]
    This was picked up by the New South Wales Court of Criminal Appeal in the matter of Gilham v R.^[34] Gilham was a case in which the applicant had pleaded guilty to manslaughter of his brother in 1995. He was later charged with murdering his parents in 2006 and the crown case called into question the “acquittal” of murder of the brother. The court held that the judge did not err in failing to stay the proceedings. The rule against double jeopardy did not apply as the issue of murder of the brother had not been litigated.

35. [35]
    The court noted that in R v Z the House of Lords had permitted the crown to lead evidence of previous rapes at a rape trial despite previous acquittals on the basis it was similar fact evidence. The principle of double jeopardy was not infringed by the admission of similar fact evidence. R v Arp and R v Degnan were to similar effect.

36. [36]
    The court noted at [146]:

“R v Z and Degnan suggest that the rule against double jeopardy does not operate where the way the prosecution seeks to prove its case incidentally has the effect of calling into question or proving the error of a previous acquittal. It would otherwise be a breach of the rule where that was the purpose of the prosecution. The applicant's case does not fall foul of the rule against double jeopardy, so understood. The Crown seeks to prove that the applicant killed his parents. It is correct that if proved the consequence must be that the Crown was mistaken in accepting the applicant's plea to the manslaughter of Christopher. However, fundamental to the acceptance of that plea was not a finding that Christopher had killed his parents, but rather that the Crown could not prove that he did not. Proof that the Crown accepted the applicant's plea on a false premise would not relevantly contradict the verdict of manslaughter, although of course it would suggest that the applicant was guilty of Christopher's murder in so far as it indicates that there was evidence to negative provocation.”

37. [37]
    The parties also referred me to the Queensland Court of Appeal decision Barac v DPP.^[35] In Barac, the appellant had been charged with a number of offences including drug trafficking. At the committal, the DPP agreed to discontinue this count on the basis the appellant would be committed for sentence on commercial possession charges. He was committed for sentence. After a forensic accountant’s report was obtained, the DPP decided to prosecute the defendant for trafficking. Barac unsuccessfully applied for a stay.

38. [38]
    Keane JA noted at [25] that it may be impecuniosity arising from reliance on an assurance by the crown may adversely affect the prospects of an accused obtaining a fair trial. However, it was also noted at [24], that sometimes expense and stress are exacerbated by inefficiency or even incompetence by the crown but without more this does not justify the grant of a stay.

39. [39]
    I note, of course, in the present case, we are concerned with an exclusion of evidence application not a stay application.

40. [40]
    It is possible for a person to be tried and punished for an offence and then to be prosecuted for a different offence relying on the same act. An example of this may be found in Lecornu v R.^[36]

41. [41]
    In Lecornu, the appellant was subject to an extended supervision order, a condition of which was that he not commit a “relevant offence” such as possession of child pornography. He pleaded guilty to offences of possessing child pornography. He received five years imprisonment on the substantive offences and two years for breaching the supervision order. He argued that this constituted double punishment. The Victorian Court of Appeal dismissed his application holding there was no abuse or process or double punishment as the offences were different in important respects.^[37]

42. [42]
    The crown referred me to R v Illingworth.^[38] In that case, the accused was charged with 10 offences. An application was brought for a stay of Counts 9 and 10 (attempting to pervert the course of justice). The basis of this application was the acts the subject of those charges were the same as a breach of bail offence to which she pleaded guilty and was fined. It was held at [21] that the punishable act was different and further at [22] even if Counts 9 and 10 were not on the indictment, the evidence would be admissible potentially as evidence of consciousness of guilt.

43. [43]
    I consider that case to be similar (although not entirely the same) to the present one.

Application of the principles

44. [44]
    Having considered the further evidence admitted before me, there is no doubt that Officer Stebbings had information that the defendant was involved in trafficking prior to the execution of the search warrant on 22 February 2016. Despite this, he did not have evidence of this as distinct from information only.

45. [45]
    It is understandable in those circumstances that the defendant was charged only with personal possession bearing in mind his explanations for the $20,000 were not at that time the subject of a full investigation.

46. [46]
    It is, therefore, understandable he was dealt with on the basis of personal possession only by the Magistrates Court.

47. [47]
    Leaving aside the abuse of process argument, as I noted in Truong No 2, there is no doubt in a drug trafficking case that evidence of drugs found in the possession of the accused may be led at the trial as being relevant circumstantial evidence.^[39]

48. [48]
    Also as I noted, this is not a case for the application of either sections 16 or 17 of the Code as the elements of the charges are different.^[40]

49. [49]
    At the end of the day, the cases relied on by the defence are quite different. In general they involve direct challenges to legal rulings or the principle of double jeopardy. That does not apply here.

50. [50]
    I do not think it is oppressive or unfair to an unacceptable degree for the crown to rely on the finding of the cannabis. It is true that the defendant faced Magistrates Court proceedings but they were brief and it cannot be thought he spent inordinate amounts of money defending the proceedings - no such evidence was placed before the court. He also received a modest penalty from the Magistrate.^[41]   

51. [51]
    I do not think justice is brought into disrepute here. Once one understands that at the time of the plea of guilty in the Magistrates Court that there was no evidence of trafficking as distinct from information only in the possession of the police, one will readily understand how the plea proceeded the way it did. One can also understand  how the evidence of the cannabis possession has now become relevant as part of the circumstantial case against the defendant on trafficking.  The fact is that since the raid and the plea far more significant evidence of trafficking has been obtained.

52. [52]
    Whilst there may be some inconsistency between the Magistrate’s decision^[42] and the factual basis upon which the crown intends to rely now, in all of the circumstances, I do not consider this gives rise to a “scandal of conflicting decisions” such that it is unfair for the evidence to be led. The reality is at the time of the Magistrates Court, the court was not apprised to the full circumstances of the defendant’s involvement with drug offending because the evidence was not in possession of the police at that point.

53. [53]
    The fact is that drug trafficking investigations can be complex, multifaceted and can be time consuming often involving detailed surveillance evidence and detailed financial investigations- as is the case here.

54. [54]
    Also the fact is that this court is not concerned with the same charge.

55. [55]
    I weigh into the equation the serious nature of the charge and the importance of the evidence. I consider the possession of the cannabis to be important circumstantial evidence. There is a case it can be linked inferentially to the three earlier trips of Luong to Sydney during the trafficking period. While there was only a one pound bag of cannabis located in the search, there is a case it was the same amount and packaged in a remarkably similar manner to the individual bags of the 231 bags of cannabis seized from Luong on 21 May 2017. This is reasonably significant probative evidence as the crown has argued.^[43]

56. [56]
    Having considering all matters, in the exercise of my discretion, I have decided not to exclude the evidence.

Conclusion

57. [57]
    For the reasons given I make the following orders:

1. 1.
   Leave is given to the defence to reopen ruling number 2 given on 25 October 2019.

1. 2.
   The application is dismissed.