The King v Nguyen[2023] QSCPR 2

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is charged on indictment with:

   1. one count of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug (3,4-Methylenedioxymethamphetamine or MDMA) between 29 and 30 October 2019 (“Count 1”); and
   2. one count of dealing with money intended to become an instrument of crime in excess of $100,000.00 between 29 and 30 October 2019 (“Count 2”). 
2. [2]
   It is admitted that on 29 October 2019, the applicant checked into room 2111 at the Hilton Hotel in Brisbane and then on 30 October 2019 checked into room 1518 at the same hotel.  Police later found handwritten notes in trash bins in each of those rooms.
3. [3]
   The handwritten notes comprise exhibits 4, 6 and 7. They are contained on loose pieces of paper, some of which are partially torn. Exhibit 4 comprises two pages, with the notes being contained on the front of one page and the front and back of the second page. Exhibit 6 contains one page with the notes appearing on the front of that page. Exhibit 7 comprises one page with the notes appearing on the front and back of the page. Some parts of the notes are indecipherable. Images of the notes are contained in Annexure 1 to these Reasons.
4. [4]
   The Crown submits that the handwritten notes are admissible in the applicant’s trial because they contain admissions against interests or are relevant to her state of mind around the time of the alleged offending.
5. [5]
   This is an application by the applicant under s 590AA of the Criminal Code (Qld) for a ruling that the handwritten notes are not admissible or, alternatively, a ruling that they be excluded from the evidence on discretionary grounds. On the return of her application, the applicant relied upon her affidavit and gave oral evidence.

The Crown’s Case

6. [6]
   The Crown’s case includes reference to dealings between undercover police operatives and Paulus and Petronella Berkhof directed to facilitating the transportation of MDMA from the Netherlands to Brisbane.  Those dealings involved discussion about a prospective exchange of 350 kilograms of MDMA for AUD $1,100,000.00 to occur at a golf club in Brisbane on 29 October 2019.
7. [7]
   On 29 October 2019, the applicant travelled from Sydney to Brisbane.  She hired a car and later met with an undercover police operative in the carpark of the golf club.  It is alleged that she was in possession of a bag containing bundles of Australian currency. The applicant had a conversation with the undercover police operative which was recorded.  It is alleged that the applicant only wanted 150 kilograms of MDMA to take away and test and was prepared to show the undercover police operative some of the money but not leave it. The next day there were continuing negotiations for the exchange between Petronella Berkhof and an undercover police operative. Those negotiations broke down.
8. [8]
   The Crown’s particulars relevantly deal with the applicant’s intention in respect of Count 1 as follows:

“The [applicant’s] intention to possess a substance can be inferred from the following:

1. a)
   The [applicant] entered into an agreement with one or more others to attempt to possess a border-controlled substance in exchange for money.
2. b)
   The steps taken by the applicant to attempt to possess the substance, viewed in the context of the communications between [the Berkhofs] and police operatives.
3. c)
   The representations made by the applicant during the meeting with the undercover operative at the [golf club].
4. d)
   The defendant’s handwritten affirmation letter located by police on 31 October 2019 in the Hilton Hotel room in which she was staying, which stated:

“I am earning 25K per week and I am an excellent, professional driver/deliver”.

…

The defendant’s intention, knowledge or recklessness that the substance was a border-controlled drug can be inferred by one or more of the following:

1. a)
   The defendant’s statements made during the meeting with the undercover operative including but not limited to her references to “the gear”;
2. b)
   The defendant’s conduct on 29 October 2019 and 30 October 2019, viewed in the context of the communications between [the Berkhofs]”.

9. [9]
   To the extent that the particulars refer to “the defendant’s handwritten affirmation letter”, that is a reference to one of the handwritten notes, Exhibit 6. The particulars contain a reference to part only of Exhibit 6, being the last sentence. The particulars omit reference to the handwritten heading on Exhibit 6 which reads “Putting it out to the Universe”. 
10. [10]
    In respect of Count 2, the amount of money is alleged to have been $240,000.00.  The Crown’s particulars relevantly provide as follows:

“1. The [applicant] dealt with the money by doing any one or more of the following acts:

1. a)
   Receiving the money from an unknown person or persons on or about 29 October 2019.
2. b)
   Concealing it within a bag in her vehicle on 29 October 2019.
3. c)
   Driving with the money in her possession to the car park of the [golf club] on 29 October 2019 and/or showing it to the undercover operative during the same meeting.

2.  The [applicant] intended the money would become an instrument of crime.  This can be inferred by one or more of the following:

1. a)
   The [applicant’s] statements made during the meeting with the undercover operative, including but not limited to, her statement that “then after I pick it up and… it’s checked.  Then we give you everything.  All the money”.
2. b)
   The [applicant’s] conduct on 29 October 2019 and 30 October 2019, viewed in the context of the communications between Berkhof Senior and Berkhof Junior and police operatives.

…

4.  The money was intended to become an instrument of crime in relation to a Commonwealth or State indictable offence.”

The Applicant’s evidence and findings

11. [11]
    The applicant accepts that she authored the handwritten notes and that they were found in her hotel rooms.  She described the notes as affirmations about what she wanted to have in her life.^[1]  She said they were not true statements but rather visualisations reflecting her dreams.^[2]  She described herself as someone who, by the time of the alleged offending, had established a habit of writing affirmations.^[3]  She had travelled to Brisbane with three books of affirmations and inspirational ideas namely “The Book of Affirmations” by Sharon Elaine, “The Power of Thought: Ageless Secrets of Great Achievement” by Glenn Bland and a third book which she was unable to identify by title or author.  She said that she had been in the habit of writing notes of affirmation since approximately 2007 or 2008.^[4]
12. [12]
    Some of the notes contain expressions such as “putting things out for the universe,”^[5] “Putting it out to the Universe”^[6] and “ultimate dreams for the universe”.^[7]  Another note was addressed “Dear Universe”.^[8]  The applicant explained that when she visualised dreams and said that she was putting a dream out to the universe, she hoped that the universe could make the dream become a reality.  She relevantly gave the following evidence:^[9]

“…when you visualise, when you think about things and you say you’re putting it out there in the universe, the universe is… something that can make it happen.  So you just dream it.  I write it.  I dream it, I write it down… it’s like a bird and you set it free and… it just gets out into the universe, then the universe will make things happen.”

13. [13]
    Exhibit 6 ends with the sentence “I am an excellent, professionall (sic) driver/delivery (sic)”.  The applicant gave evidence that this sentence was a reference to her wish to obtain a truck licence and to then boost her income by becoming a truck driver.^[10]  She said that she had always been scared of large trucks and prime movers and she was attempting by this affirmatory note, to obtain the confidence to make her dream become a reality.^[11] She accepted in cross examination that the various references throughout the notes to “25K” was a reference to $25,000.00. In her affidavit, she had deposed that those references were to $2500 per week.^[12] She wanted to have a daytime job and a night-time job.^[13] She aspired to have a night-time job that involved working with bands in the entertainment industry.^[14] 
14. [14]
    The applicant also accepted under cross examination that some of the notes referred to existing circumstances.  In particular, she accepted that some of the notes referred to debts she owed which were real debts.^[15]  She accepted that she had an existing desire to pay those debts back.^[16]  She accepted in cross examination that the notes were aspirational in relation to “how [she] would earn large amounts of money”^[17] and how she would spend that money, including to repay her debts.^[18]
15. [15]
    The applicant was not challenged in cross examination about her established habit of writing affirmatory notes.  She was not challenged about having brought with her to Brisbane, three books which were relevant to that habit.  In cross examination, there was no suggestion made to her that her references “to the universe” as contained in the notes was for a reason other than that suggested by her in her evidence in chief.
16. [16]
    I was impressed by the applicant’s demeanour in the witness box.  She appeared to me to be a witness who was intent on providing truthful answers. She was not evasive and was a witness who was prepared to accept matters against her interest, such as in relation to the true meaning of “25K”. 
17. [17]
    I have accepted the plaintiff’s evidence about the handwritten notes, her reasons for, and her mindset whilst, writing them.  On the basis of that evidence, I make the following findings:

    1. The applicant authored the handwritten notes.
    2. The notes essentially constitute affirmations reflecting what she wished for or desired in her life.
    3. To the extent that the notes contain affirmations and were seeking aid from the universe, they were not recording matters of reality but rather were the applicant’s visualisations or aspirations.
    4. The applicant aspired to work as a truck driver and in the entertainment industry.
    5. The reference in Exhibit 6 to “I am an excellent, professionall (sic) driver/delivery (sic)” was an affirmation referencing the applicant’s desire to obtain a truck driving licence and thereafter to become a truck driver.
    6. To the extent that the notes variously refer to “25K” that was a reference to the applicant’s desire to earn $25,000.00 per week from working as a truck driver.
    7. The notes refer to debts which the applicant in fact owed and was desirous of repaying from her desired occupations working as a truck driver and in the entertainment industry.

The first issue: are the handwritten notes admissible as admissions?

18. [18]
    The handwritten notes do not contain any reference to drugs or criminal conduct. They do not constitute a direct admission to the offending the subject of counts 1 or 2 on the indictment.  That does not necessarily mean that the handwritten notes are irrelevant or inadmissible.^[19] In R v Caulfield,^[20]  Muir JA^[21] observed that it is the function of the jury to decide “whether a statement, whether oral or written, viewed as a whole and in context constitutes an admission”.  His Honour had earlier observed:^[22]

“If words spoken by an accused are reasonably capable of being construed as an admission by the accused, they are admissible.  It is for the jury to determine whether or not the words amount to an admission and what weight, if any, the admission should be given”.

19. [19]
    Whether words are reasonably capable of constituting an admission is not a question which can be determined without regard to the context in which the words were written or spoken.^[23] The context in which words are written or spoken is important to how the words are to be construed and whether they are reasonably capable of constituting an admission. In R v Woods,^[24] Fraser JA observed that “[i]t is commonplace that the context in which words are uttered requires rejection of a literal construction of the words”. The relevant context here is that the notes essentially constitute affirmations reflecting what the applicant wished for or desired in her life. To the extent that the notes contain affirmations and were seeking aid from the universe, they were not recording matters of reality but rather were reflective of her visualisations or aspirations.
20. [20]
    The Crown suggested three relevant admissions, namely that the applicant was performing work as an “excellent, professionall (sic) driver/delivery (sic)”, was earning or was anticipating earning “$25K AUD per week” and had significant financial motive to commit the offences.  I have found that the reference to “an excellent, professionall (sic) driver/delivery (sic)” was an affirmation referencing the applicant’s desire to obtain a truck driving licence and thereafter to become a truck driver. I have also found that the applicant hoped to earn $25,000.00 per week in that role.  The handwritten notes are not reasonably capable of constituting the first two admissions.
21. [21]
    As to the issue of motive, it may be accepted that Exhibit 4 evidences the fact that the applicant owed debts which she was desirous of repaying.  The particulars of the Crown’s case make no reference to the existence of debts. It would appear that the Crown seeks to draw an inference from the fact that debts existed, namely that the applicant was motivated by the debts and her desire to repay them, to commit the alleged offending. That inference does not appear to me to be the only rational inference that can be drawn from the mere existence of the debts. That is particularly the case where I have found that the applicant aspired to repay those debts from lawful, gainful employment. I have some doubt that a statement made in this context, acknowledging the existence of debts, is reasonably capable of constituting an admission of a significant financial motive to commit the offending.^[25]
22. [22]
    It has been said that evidence is relevant “if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings”. ^[26] In HML v The Queen, Gleeson CJ said:^[27]

“Motive may rationally affect the assessment of the probability of the existence of one or more of the elements of an offence. Evidence that tends to establish motive, therefore, may rationally affect such assessment. If so, it is relevant.”

23. [23]
    I am prepared to accept that Exhibit 4, to the extent it acknowledges the existence of debts, might have some limited probative value in the sense that it may tend to establish a motive for the offending. In this regard, whilst the relevance of Exhibit 4 is in my view tenuous, I am prepared to accept that it is relevant and admissible.

The second issue: are the handwritten notes admissible as relevant to state of mind?

24. [24]
    The Crown submits that the handwritten notes are relevant and admissible as a piece of circumstantial evidence demonstrative of the applicant’s state of mind and knowledge at or around the time of the alleged offending.
25. [25]
    In Walton v R,^[28] Mason CJ said:

“…evidence of a relevant out-of-court statement is admissible evidence of the maker’s knowledge or state of mind when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue… Similarly, a person’s statements or declarations are an accepted means of proving his intentions in circumstances where it is material to prove what those intentions were… It is because the making of the statements has independent evidentiary value in proving the author’s intentions, those intentions being a fact in issue or a fact relevant to a fact in issue, that the witness’ testimony does not infringe the hearsay rule.’

26. [26]
    Ultimately the Crown submitted that the statements in the handwritten notes referencing “driving”, earning large sums of money, and repaying debts was highly probative of the applicant’s state of mind and demonstrate knowledge consistent with her having an active involvement in a commercial drug transaction as alleged. I have made findings in relation to the references to driving and desire to earn sums of money. Those statements, properly construed in context, are not probative of a statement of mind consistent with active involvement in the alleged drug transaction. To the extent that there are references to existing debts in Exhibit 4, I have accepted that those references are of limited probative value in the sense that they may tend to establish a motive for the offending. They are not however direct evidence of a state of mind consistent with active involvement in the alleged offending.

Discretion to exclude

27. [27]
    The discretion to exclude relevant admissible evidence arises under s 130 of the Evidence Act 1977 (Qld).  The discretion is engaged where the probative value of evidence is small compared to its capacity to prejudice a fair trial.^[29] On this application, it should not be assumed that the applicant will give evidence at her trial.  There is an important context to Exhibit 4 which the jury would be deprived of in the event that the applicant exercises her right not to give evidence.  Without the benefit of the context in which Exhibit 4 was created, the notes comprising Exhibit 4 are unlikely to be fairly read and understood, giving rise to the very real possibility of incriminatory speculation on the part of the jury.  In the absence of any evidence as to the context in which Exhibit 4 was created, there is, in my respectful view, a genuine and all- pervading ambiguity attendant upon the meaning of the notes. Exhibit 4 has tenuous relevance on the issue of motive and does not form part of the Crown’s particulars on either count. In all of the circumstances, I exercise my discretion to exclude Exhibit 4.

Orders

28. [28]
    The rulings I make are as follows:

1. The notes comprising exhibits 6 and 7 are not admissible at the applicant’s trial.
2. The notes comprising exhibit 4 are excluded and not to be led by the Crown at the applicant’s trial.

ANNEXURE 1

1. Ex 4:

2. Ex 6:

3. Ex 7: