Nguyen v The Queen [2015] VSCA 76 (30 April 2015)

Last Updated: 30 April 2015

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0030

VAN THEN NGUYEN	Applicant

v

THE QUEEN	Respondent

AND

S APCR 2014 0055

LOAN THI TRAN	Applicant

v

THE QUEEN	Respondent

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JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 April 2015
DATE OF JUDGMENT:	30 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 76
JUDGMENT APPEALED FROM:	DPP v Tran & Anor [2013] VCC 2145 (Judge Stuart)

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CRIMINAL LAW – Conviction – Trafficking in a large commercial quantity of heroin – Various directions of law made during course of trial – Judge provided jury with folder containing transcript of previous directions and indicated in charge that all previous directions ‘stand’ – Whether provision of folder in substitution for oral restatement of relevant directions gave rise to substantial miscarriage of justice – Judge entitled to incorporate previous directions in way that he did – No objection taken by counsel at trial – Leave to appeal refused.

CRIMINAL LAW – Conviction – Large portion of Crown case consisted of telephone intercepts and listening device product of conversations involving accused – Whether judge failed adequately to relate directions of law on issue of intent with particular facts and evidence in the case – No benefit to accused in having relevant prosecution evidence repeated in judge’s charge – No objection taken by counsel at trial – Leave to appeal refused.

CRIMINAL LAW – Conviction – Whether passage in judge’s charge amounted to a direction to convict – Judge merely explaining how jury could arrive at a unanimous verdict and summarising submission that had been put by prosecutor – Leave to appeal refused.

CRIMINAL LAW – Conviction – Two accused convicted on basis of joint criminal enterprise – Crown case was that accused carried on business of trafficking in Giretti sense – Evidence at trial was that one accused was principal offender and the other assisted with trafficking activities – Judge did not in terms direct jury as to requirement that parties formed an agreement to engage in ongoing business of trafficking as an element of joint criminal enterprise – Whether failure to do so resulted in substantial miscarriage of justice – Verdict of jury must necessarily have entailed requisite finding as to agreement in light of directions given and evidence at trial – No substantial miscarriage of justice – Leave to appeal refused.

CRIMINAL LAW – Sentence – 8 years with non-parole period of 5 years – Accused Tran principal offender in trafficking business – Total amount of heroin trafficked approximately 1.8 kilograms –Whether sentence manifestly excessive – Few mitigating factors of substance – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors

For the Applicant Nguyen	Mr C B Boyce SC with Ms G F Connelly	Grigor Lawyers

For the Applicant Tran	Mr B Walmsley QC	Slades & Parsons

For the Crown	Mr O P Holdenson QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA

PRIEST JA

BEACH JA:

1 The applicants, Loan Thi Tran and Van Then Nguyen stood trial in the County Court at Melbourne jointly charged with trafficking in a large commercial quantity of a drug of dependence, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs, Poisons and Controlled Substances Act’). They were both convicted of that offence, which carried a maximum penalty of life imprisonment.

2 On 11 December 2013, Tran, who was regarded as the principal offender, was sentenced to 8 years’ imprisonment with a non-parole period of 5 years and 6 months. Nguyen was convicted on the basis of joint criminal enterprise, and sentenced to 5 years and 6 months’ imprisonment, with a non-parole period of 3 years and 9 months.

3 Tran seeks leave to appeal against both conviction and sentence. The proposed grounds, as specified in her Notice of Appeal, are as follows:

Conviction

The learned trial judge erred in failing to deliver a complete charge to the jury after the close of the evidence and the completion of counsel’s final address.
The learned trial judge’s direction [sic] on the intention required to traffic a large commercial quantity, and a commercial quantity, were inadequate and not in accord with the authorities.
In the course of the learned trial judge’s charge his expressions within pp. 449 – 451 appear as a direction to convict, or alternatively amount to a usurpation of the jury’s function.^[1]

Sentence

The sentence imposed by the learned trial judge was manifestly excessive in all the circumstances.

4 During the course of oral argument before this Court, senior counsel for Tran sought leave to amend the grounds in support of the application for leave to appeal against conviction by adding three further grounds (grounds 5, 6 and 7 respectively). Those grounds mirror the first three grounds upon which Nguyen seeks to challenge his conviction. The Crown did not oppose the application to amend, and leave was accordingly granted.

5 Nguyen seeks leave to appeal against conviction on the following grounds:

The learned trial judge erred by failing properly to direct the jury as to the principle of complicity known as joint criminal enterprise.
The learned trial judge erred by failing to direct the jury that in order to find the applicant guilty on the basis that he had entered a joint criminal enterprise with his co-accused to commit the charged offence, the applicant was required to have reached an agreement or understanding with his co-accused that they jointly pursue a criminal enterprise and such an agreement of [sic] or understanding had to remain in existence at the time the offence was committed.
The learned trial judge erred in failing to direct the jury that in order to find the applicant guilty on the basis that he had entered a joint criminal enterprise to commit the charged offence, the applicant must have reached an agreement or understanding with his co-accused whereby:

(a) the applicant agreed to acts committed by his co-accused that would constitute the actus reus of the charged offence;
(b) such an agreement amounted to an agreement with the co-accused that the co-accused would engage in particular conduct necessary to commit the charged offence; and
(c) this agreement continued from its inception until the co-accused has committed sufficient acts to constitute guilt of the charged offence.

The verdict of the jury that the applicant committed the actus reus of the offence with [sic] which he was found guilty is unreasonable or cannot be supported having regard to the evidence.

6 Although ground 4 was not formally abandoned, senior counsel for Nguyen did not advance any oral argument in support of that ground. That was not surprising. The ground is clearly devoid of merit. It was on that basis that we indicated to senior counsel for the Crown that he need not address ground 4 in oral argument.

Background facts

7 The Crown case was that, over a three month period between 22 January and 27 April 2009, Tran and Nguyen together engaged in the business of trafficking a large commercial quantity of heroin. Tran was said to be the principal offender, while Nguyen was said to have occupied the role of her confidant, and to have acted as an intermediary with her suppliers. It was specifically put that Nguyen’s offending should be viewed as that of a person complicit in the primary offence, by way of the doctrine of joint criminal enterprise.

8 The Crown alleged that Nguyen had both received, and passed on, messages on behalf of Tran, and at her direction had assisted with transactions to purchase heroin. He was also said to have assisted in the raising of funds to buy substantial quantities of that drug, and to have held the proceeds of sale on her behalf. There was also evidence that throughout the relevant period he accompanied Tran, and sometimes drove her, to a number of different locations as part of his general involvement in the business of trafficking.

9 The evidence was said to establish five separate and distinct purchases of heroin during the offending period. A substantial portion of the Crown case consisted of telephone intercepts, and listening device product, much of it involving conversations between Tran and Nguyen. There was also evidence of physical surveillance of the two co-accused by the police.

10 Tran was said to have sold heroin to known associates in ounce and multiple ounce quantities. She was said to have sourced the heroin from other associates, in particular Hoang Thai Trinh (‘Thai’), who happened to be Nguyen’s son in law, in what were described as ‘blocks’. The evidence was that a ‘block’ consisted of something like 350 grams or 12.5 ounces of the drug. Both accused were said to have spoken in code during the course of their telephone conversations in order to conceal the true nature of their activities.

11 The Crown alleged that Tran’s various dealings in heroin could be inferred from the recorded conversations. There was no direct evidence to support any single sale, apart from a specific transaction that was said to have taken place on 20 March 2009. On that occasion, one ounce of heroin was sold to a particular individual in a Bunnings car park in Sunshine.

12 Tran’s defence was that it was not open to the jury to infer guilt based upon the telephone intercepts and listening device recordings because the evidence concerning them was unreliable. The conversations were all in Vietnamese. Tran pointed to a series of translation errors that she claimed had been made by the interpreters engaged by the Crown. She also relied upon the acknowledged inaudibility of some of the recordings.

13 Tran also relied, in particular, upon the fact that she ran a substantial contracting business which, she claimed, explained a number of the references, in the recordings, to large sums of money. She also pointed to the fact, not disputed by the Crown, that she was a heavy gambler. She argued that this explained, or at least gave context to, some of the otherwise apparently incriminating remarks upon which the Crown largely based its case.

14 Nguyen argued that the Crown had failed to establish that he had ever engaged in the business of trafficking a large commercial quantity of heroin, as alleged. He also challenged the reliability of the translations of the various recordings of conversations between himself and Tran, upon which the Crown based its case. He submitted that a number of the contentious ‘code words’, upon which the Crown relied, did not bear the meaning for which the Crown contended. When considered in combination with the extent of indecipherable and inaudible material in the recordings, it would be dangerous to accept the Crown’s arguments in that regard.

15 In addition, Nguyen submitted that the evidence against him, taken at its highest, showed only a limited involvement on his part throughout the period nominated in the indictment. In fact, the conversations with Tran to which he was a party occurred on 13 days only.

16 In her revised written case, Tran correctly noted that the Crown case had been put on the basis that she and Nguyen were in the business of trafficking in heroin in a Giretti [2] sense.

17 The bulk of the evidence against her consisted of between 160 and 170 lawfully intercepted telephone conversations, as well as listening device product emanating from a device that had been secreted in a motor vehicle that she had used throughout the period of the alleged offending.

18 As we have indicated, all of the intercepted conversations were in Vietnamese. By agreement, a transcript of the English interpretation of these conversations was made available to the jury in the form of a jury book. An independent member of counsel read them to the jury.

19 The Crown particularised its case by reference to a 36 page ‘Summary of Prosecution Opening’. That document formed the basis of the prosecutor’s opening address to the jury, and highlighted the conversations upon which the Crown particularly relied.

20 In relation to the ‘code words’, particular emphasis was placed on the use, in Vietnamese, of the words ‘gear’ and ‘piece’. ‘Gear’ was said by the Crown to be code for heroin, and ‘piece’ a particular quantity of that drug.

21 With regard to the one sale of heroin of which the Crown claimed to have direct evidence, the prosecution case was as follows. On the evening of 19 March 2009, Tran and the would be purchaser discussed the sale of one ounce of the drug. On the afternoon of the following day, Tran was observed by police to be a passenger in a motor vehicle driven by Nguyen. That vehicle was driven to the Bunnings car park in Sunshine. Shortly afterwards, the would be purchaser arrived, accompanied by another Vietnamese male. He got out of his car, and was seen to be carrying a package. He got into the backseat of the vehicle being driven by Nguyen, and remained inside for about seven minutes. He then returned to his own car, without the package, and drove off. Police followed that vehicle to Clayton where it was intercepted.

22 The vehicle was searched. Under the front passenger seat, police located electronic scales and other drug paraphernalia. However, and for whatever reason, they did not locate any drugs in the car.

23 Later that evening, the alleged purchaser’s partner telephoned Tran and informed her that police had intercepted and searched his vehicle. Nguyen came on the phone and spoke with the partner. He subsequently told Tran that everything was okay because the police had not found ‘it’. He suggested to Tran that she might consider changing her phone number.

24 With regard to the sourcing of heroin, the Crown alleged that, on the basis of the recorded material, and surveillance, it could identify five distinct purchases undertaken by Tran throughout the period of the alleged offending. It contended that the inference could be drawn that the total amount of heroin acquired by Tran came to approximately 1.8 kilograms.

25 The evidence, as (accurately) summarised in Tran’s revised written case, was as follows:

The first purchase was said to occur between 9 February 2009 and 12 February 2009 when Thai purchased heroin from Sydney. [Tran] was said to have contributed $100,000 towards the purchase of a block and raised other funds towards it. This purchase was said to be capable of being inferred from telephone intercepts.
The second purchase was alleged to be for one block of heroin and said to occur between 19 February 2009 and 23 February 2009. Again it was alleged that [Tran] provided Thai with $100,000 for the purchase. This purchase was said to be capable of being inferred from the telephone intercepts.
The third purchase was said to occur on or about 13 March in respect of 5 ounces of heroin from an unidentified source for $50,000. Again there was no direct evidence and the purchase was said to be capable of being inferred from the conversations.
The fourth purchase was said to occur between 21 March 2009 and 22 March 2009 in respect of one block of heroin. On 22 March 2009 Police arrested Thai’s brother (Kien Trinh) and another Vietnamese male driving back to Melbourne from Sydney. Police located a block of heroin in the back seat of the car. The Crown allege that [Tran’s] involvement in this transaction could be inferred from the telephone intercepts.
The fifth purchase was said to occur on 25 April 2009 when [Tran] was alleged to purchase two blocks of heroin in Sydney and arrange for them to be couriered back to Melbourne by her friend Thi Chuyen Tran (‘Chuyen’).^[3]

26 In late April 2009, Tran stayed at the Star City Casino, in Sydney. Apparently, there was a promotional offer whereby anyone who introduced others to gamble received free chips. She arranged for a number of persons to attend the casino to gamble. The Crown case was that whilst in Sydney, she organised Chuyen, then in Melbourne, to collect money for the purchase of heroin. Then, on 25 April 2009, she purchased two blocks of heroin for $250,000, in Sydney, and took them back to her hotel room. It was further alleged that on that same evening, Chuyen, who by then had come to Sydney, collected the heroin from Tran, in order to return to Melbourne by bus. Chuyen was subsequently arrested on a bus bound for Melbourne, and was found to be in possession of two blocks of heroin.

27 The Crown relied upon subsequent conversations between Tran and Nguyen on 26 April 2009, where Tran was said to have ‘become anxious’ that Chuyen had not arrived back in Melbourne, and had asked Nguyen to find out what had happened to her.

28 The Crown led evidence from the informant, who had a great deal of experience in investigating drug matters, as to the use of alleged code words in the recorded material. It also led evidence regarding the police surveillance of Tran at Star City, as well as the circumstances surrounding Chuyen’s arrest. It called evidence from a compliance officer at Crown casino in Melbourne who produced records regarding Tran’s gambling throughout the relevant period. That evidence was led in support of the Crown’s assertion that Tran’s otherwise unexplained wealth was likely to have been derived from her involvement in heroin trafficking.

29 Under cross-examination, the interpreter called by the Crown conceded that his translation of two particular words, said by the Crown to be code for terms associated with drugs, had been influenced by his knowledge that the conversations in question were said to be about trafficking in drugs.

30 When police searched Tran’s home, they located and seized two small quantities of heroin (6.5 grams and 0.2 grams), as well as scales and other drug paraphernalia. Tran did not give evidence, but her defence, as put in cross-examination of the Crown’s informant, suggested that these items belonged to another occupant of the house, who had earlier pleaded guilty to both trafficking and possession of heroin.

Tran’s ground 1

31 Tran’s submissions in relation to ground 1, as set out in her revised written case, were as follows:

Ground 1 — The Learned Trial Judge erred in failing to deliver a complete charge to the jury after the close of the evidence and the completion of Counsel’s final addresses.
Argument. In his charge to the jury the Learned Trial Judge did not fully and comprehensively direct the jury on all of the issues of law relevant to the trial after the close of the evidence and Counsel’s final addresses.
His Honour had prepared and given to the jury a folder of ‘Judicial Comments, Warnings and Directions of Law’ containing the transcript of the directions and warnings that His Honour had given during the trial. His Honour told the jury that these directions ‘stand with full force’. His Honour stated ‘so all you need do if you wish to look for a direction that I have previously given to you, or the warning, it will be in that folder.’
His Honour did not instruct the jury that they were obliged to read the contents of the folder during the course of their deliberations.
His Honour’s method of charging the jury did not ensure that the jury were alerted to all of His Honour’s directions of law at the conclusion of the trial and in particular after the case for each party had been outlined to them in closing addresses. In particular the jury did not have the benefit of His Honour’s directions (previously given) as to the difficulty and danger in relying on transcripts from a foreign language and the warning in relation to the interpreter’s insertion of his own assumptions into his interpretation of the conversations.
Given that the Defence case was only fully detailed at the close of the evidence (when defence exhibits were tendered and in the final address) the jury was not directed as to these difficulties in the context of the case as a whole. Although the directions were alluded to and the jury’s attention drawn to the folder His Honour’s failure to fully and comprehensively set out these directions at the conclusion of the trial led to a substantial miscarriage of justice.

32 In order to understand more fully what lies behind ground 1, it is necessary to explain in some detail how the trial judge dealt with the various issues of law that arose during the course of the trial.

33 As Tran’s written argument notes, his Honour had prepared and provided to the jury a folder of ‘Judicial Comments, Warnings and Directions of Law’ containing the transcript of the directions and warnings that he had previously given them at various stages.

34 In his charge to the jury, his Honour said, of that folder of materials:

My first direction to you of law is that all previous directions of law and all warnings that I have given you stand with full force. In order to assist you, Ms Lee has prepared a document which is headed ‘Judicial Comments, Warnings and Directions of Law’ and if that can be provided to the members of the jury. That, as you will see, sets out in tab form a summary of what the directions are, where they are to be found, and whether there is a cross reference to a particular exhibit.
Ms Lee, would you also provide Madam Forelady with the copy of the folder which contains those extracted documents. So for example, Tab 1 will have behind it preliminary directions and the relevant extracted pages there, et cetera, et cetera. So all you need do if you wish to look for a direction that I have previously given to you or the warning, it will be in that folder. As I say, as I direct you, my previous directions stand with full force, as do any warnings that I have given you of a judicial kind. My comments are nothing more than that, just comments and of as much moment as you care to make them. My directions of law you must apply, my warnings you must consider, my comments are in exactly the same position as anything said by any counsel from the Bar table.^[4]

35 His Honour continued:

Some of my directions of law that I will give to you during the course of this charge will repeat some of the things I have said already as directions of law. If I do not repeat something, a direction of law as a topic, that does not mean it is of any lesser importance. The directions of law I have already given you stand.^[5]

36 This trial was conducted in accordance with the requirements of the Jury Directions Act 2013 (‘Jury Directions Act’). Relevantly, that Act provides that in summing up to the jury, the trial judge must explain only so much of the law as is necessary for the jury to determine the issues in the trial,[6] and need not give a summary of the evidence, but only ‘identify’ so much of that evidence as the judge considers necessary to assist the jury.[7] In doing so, the judge may use a combination of ‘oral and written components’.[8]

37 In determining whether, and if so, to what extent, identification of evidence is necessary, the trial judge must have regard to, inter alia, any transcript of the evidence in the trial, or any other document provided to assist the jury to understand the evidence.[9] Moreover, the Criminal Procedure Act 2009 provides for the trial judge to give the jury the transcript of the evidence in the trial, and certain other documents for the purpose of helping them understand the issues or the evidence.[10] In providing the jury with the folder to which we have referred, his Honour exercised precisely that power.

38 It is important to note that the question whether the jury should be provided with the folder of ‘Judicial Comments, Warnings and Directions of Law’ was fully discussed with the parties before his Honour embarked upon that course. The matter was first raised with counsel before closing addresses, and they were given the opportunity to reflect upon whether it was appropriate to provide a folder in that form. Subsequently, his Honour asked counsel whether, having considered the matter, they had any objections to that course being adopted. The transcript reads as follows:

His Honour: Have you turned your mind to me providing the transcript of my directions?
Counsel for Tran: Yes, I’ve got no difficulty with that proposition at all. I looked at it on the transcript this morning as your Honour was noting the pages and I have no difficulty with them being provided.

39 Counsel for Nguyen agreed, adding that his Honour had ‘distilled’ the issues in the case and he was happy for the folder to go to the jury. The prosecutor also agreed.

40 It is also important to note that there were no exceptions to his Honour’s charge. It follows that counsel for Tran saw no prejudice to his client from having the various directions and warnings previously given during the course of the trial, some of which were repeated orally in the charge, dealt with in that way.

41 It is now said that the use of the folder, in substitution for an oral restatement of all the relevant directions and warnings in the charge itself gave rise to a substantial miscarriage of justice. In particular, it is suggested that although each of these directions and warnings may, if viewed in isolation, be regarded as unimpeachable, there was a need to repeat them, in some cases with amplification, having regard to the fact that they were given at an earlier stage in the trial, before all of the evidence had been led.

42 In addition, it is submitted that if the folder was to substitute for oral directions, the trial judge was obliged to tell the jury, in terms, that they had to read for themselves each and every document contained within it. His Honour did not do so.

43 The Crown submitted that the trial judge was perfectly entitled, with the consent of counsel, to deal with the matter of previous directions and warnings in the way that he had. It was obviously sensible to give each such direction or warning at the time the particular issue arose in the trial, and his Honour had done so in clear and comprehensible terms. He made it plain, in his charge to the jury, that those previous directions and warnings stood, and stood with full force. He thereby necessarily incorporated those earlier directions and warnings into his charge. It was inconceivable that the jury would not have understood that those directions and warnings were to be applied by them during the course of their deliberations. It was unnecessary, and patronising, to suggest that the jury should have been told in terms to read what was contained in the folder.

44 It was further submitted that the trial judge’s warning to the jury as to the difficulties associated with translation from Vietnamese into English, and his Honour’s summary of the defence case regarding that matter, were entirely adequate. He expressly repeated that particular warning, which was of course included in the folder, during the course of his charge.

45 In our opinion, the Crown’s submissions regarding ground 1 should be accepted. Tran was represented at trial by competent and experienced counsel. Had there been any inkling whatsoever, in his mind, that the provision of the folder to the jury might not adequately ensure that they approached their task in a correct manner, bearing in mind all the relevant directions and warnings, one could confidently expect that matter to have been raised, and forcefully so.

46 Trial judges these days routinely provide juries with written instructions as to matters such as the elements of offences, whether or not those are complex, or difficult to grasp. That is a practice which has much to commend it. So too is the practice of providing juries with transcript of evidence, where appropriate, and in some cases, transcript of addresses and the judge’s charge. We do not accept that a judge must repeat, orally as part of the charge, each and every direction and warning set out within a document or documents such as those contained within the folder in this case. The jury were given those directions orally throughout the trial, and they were given them again by having them incorporated into the judge’s charge through the use of the folder.

47 Not every judge will approach the matter in this way. Nor is it the case that he or she must do so. Trial judges are perfectly at liberty to tailor their instructions so that they are communicated in a clear and readily comprehensible fashion. A judge may make use of current means of communication, including modern technology, if the judge considers that likely to be effective. We know enough about the difficulties of listening to a purely oral presentation, sometimes extending over many hours, if not days, to appreciate the need for better and more effective jury directions. That knowledge underpins a number of the provisions of the Jury Directions Act.

48 It was entirely open to counsel for Tran, at trial, to ask the judge, by way of submission under s 11 of that Act, to elaborate upon the written directions contained within the folder, including the particular warnings set out therein. His Honour was under no obligation to do so, at least in the absence of any such request, unless the residual obligation contained within s 15 was triggered.

49 Although senior counsel for Tran submitted that this was a case where further and more detailed directions regarding the process of drawing inferences from the recorded material were required, counsel who appeared at trial appears to have taken a different view. That was a forensic choice properly open to him.[11] Indeed, one can scarcely imagine why he would have come to any other conclusion than he did. To have asked his Honour to go through, in detail, a number of the recorded conversations, so as to put more ‘flesh’ upon the general directions given as to inferential reasoning, would have served only to remind the jury of the very matters upon which almost the entire Crown case was based. There was no substantial miscarriage of justice arising out of the provision of the folder.

50 For these reasons, we consider that there is no substance to ground 1.

Tran’s ground 3

51 This ground complains of the trial judge’s failure to direct the jury adequately as to the drawing of inferences in relation to the element of intent. In her revised written case, Tran submitted as follows:

Ground 3 – The Learned Trial Judge’s direction on the intention required to traffic a large commercial quantity, and a commercial quantity, were inadequate and not in accord with the authorities.
Argument. Whilst His Honour did direct the jury on the question of the intention required to traffic a large commercial quantity and a commercial quantity of heroin, in a circumstantial case such as this, his directions were inadequate, there being no proper direction in relation to the facts under consideration.
The existence of the requisite intention is a question of fact to be determined by the jury and to be derived as a matter of inference from the other facts established by the prosecution. In directing the jury, the trial judge should identify any evidence of facts and circumstances capable of sustaining the inference. It is submitted that His Honour failed to adequately do so.

52 In other words, Tran’s complaint under cover of ground 3 is that, although his Honour gave general directions as to inferences, and directed the jury appropriately regarding the law on this subject, he failed to relate the law to the particular facts of this case. This is, in a sense, a variant of ground 1, and the two grounds were argued together. Ground 3 more directly invokes the principles laid down in Alford v Magee,[12] as reflected in s 17(a) of the Jury Directions Act.

53 In our opinion, the jury were given clear and sufficient directions regarding the drawing of inferences. They were specifically directed as to the drawing of inferences with respect to each of four questions that his Honour posed for their determination, one of which concerned the requisite intent that had to be established. His Honour identified, albeit in general terms, the evidence upon which the Crown relied in support of the inference that Tran had intended, throughout the requisite period, to traffic in a large commercial quantity of heroin.

54 For the reasons given in relation to ground 1, it would have been of no benefit to Tran to have the judge laboriously read out the passages of transcript of her many conversations with Nguyen upon which the Crown particularly relied in support of its case. That would have been to highlight the strength of that case, and would have detracted from the only possibly viable defence that was put forward on her behalf.

55 The failure to take any exception to the way in which this matter of inferences was dealt with is, in our view, fatal to this ground.[13]

Tran’s ground 4

56 In relation to Ground 4, Tran’s revised written case states:

Ground 4 – In the course of the Learned Trial Judge’s charge his expressions within pages 449 – 451 appear as a direction to convict, or alternatively amount to a usurpation of the jury’s function.
Argument. In the passage referred to, His Honour appears to draw certain conclusions as to weight. His calculations are not properly reflective of the evidence. For example, in reference to a passage taken from a telephone intercept at page 719 where the Applicant is said to advert to ‘at most two pieces a week’, His Honour rounds this up to two ounces per week, every week, for the period of the charge, namely thirteen weeks. This is notwithstanding that the call is made on the 13th March 2009, almost a month into the period of the charge, and appears to relate to future transactions.
His Honour then says to the jury that some of them may accept beyond reasonable doubt that statement ‘as being a minimum quantity transacted as part of the business on a weekly basis’. With respect, this calculation treats the phrase ‘at most’ as being ‘at least’ and in doing so, inflates the calculation in a manner which is unfair to the Applicant.^[14]

57 The particular passages upon which she relies, and to which she refers in her revised written case, are as follows:

Now, transaction 3, you recall, is the transaction which the prosecution allege involved the purchase of five ounces from Thuyet and that conversation. As part of that conversation and another way in which you may — it is up to you — determine the quantity that this business — assuming the Answers 1 and 2 are ‘yes’ — was engaged in is to look to a passage at p.719, where in the conversation between Thuyet and Mrs Tran she adverts to ‘at most two pieces a week’, remembering that the prosecution maintained that that was an underestimate of the business by her for whatever reason.
Now, I am just going to round it up to two. If she was transacting two ounces - and I have rounded it up, remember; I am just going to give a real basic lawyer's mathematical calculation - two ounces is 56 grams, by 13 weeks gives a total of 725 grams. Now, that is another way of looking at the evidence, but to do that again requires proof, firstly, beyond reasonable doubt that the statement was made: well, here the statement was there; secondly, that it was a statement in relation to heroin, nothing else — heroin.
So two pieces refers to two ounces of heroin, that it was at least a truthful statement as to that, what the prosecution say is a minimal — the minimum amount that she was transacting, so that it is a truthful statement at least to the minimum and your satisfaction beyond reasonable doubt that it did reflect the extent of the business during the relevant 13-week time period.
Now, let’s draw back again. Some of you may accept beyond reasonable doubt that statement as being a minimum quantity transacted as part of the business on a weekly basis, giving you — and it has been rounded up, remember — a quantity on simple arithmetic of 725 grams. To take illustration, a gentleman in the back row, the closest to me, may accept that — that it is around 725. Let us put it down — 700, maybe 650, whatever — and that gentleman, a members of the jury, also accepts that transaction 5, the Sydney transaction and seizure, was also part and parcel of that business of trafficking in heroin, thereby getting the figure of — well, on those crude figures in excess of 1400 grams over the 1000 gram large commercial quantity.
That is another way in which you may — it’s up to you, you are the determiners of fact — in accordance with my directions of law establish the extent of the business, being either a large commercial quantity, a commercial quantity or, of course, neither, in which case that is the end of it. The answer to your Question 3 is ‘no’ and that is the end of it, for both accused, of course. You will be pleased to hear I am coming to the end.^[15]

58 In substance, the complaint here is that the trial judge converted a statement by Tran to the effect that, as far as she was concerned, she would take ‘at most two pieces a week’ into something very different, namely a statement that she would take a minimum of two pieces a week. His Honour then then multiplied that figure by the 13 weeks of the alleged offending, arriving at a total of 725 grams. It is said that this amounted to a direction to the jury to convict or, at the very least, a usurpation of the jury’s task.

59 When his Honour’s charge is read as a whole, and the particular passages set out above are viewed in context, the matter takes on a different complexion.

60 It is clear that the trial judge at this point in his charge was doing no more than explaining to the jury how they could arrive at a unanimous verdict by following quite different routes. He was also closely summarising a particular submission that had been advanced by the prosecutor in his closing address.

61 In our opinion, the jury would have understood full well that his Honour was not directing them as to how they should interpret the expression ‘for me, at most two pieces a week’. Having referred to that particular statement by Tran, he went on to say, in effect, that on the assumption for which the prosecution contended, and which had led the prosecutor into arithmetic error, the true figure would have been 725 grams (rather than the 670 grams calculated by the prosecutor). When his Honour added ‘it’s up to you, you are the determiners of fact’, he made it clear that it was for the jury to interpret what had been said during the course of the recorded conversation, as translated.

62 The jury had, of course, been told earlier that their role was to decide all questions of fact, including what inferences should be drawn from what had been recorded. Nothing said by his Honour could possibly be regarded as a direction to convict, and his comments in this regard did not in any way usurp the jury’s function.

63 Ground 4 must therefore be rejected.

Tran’s grounds 5, 6 and 7

64 We will deal with these additional grounds, added by leave, when we consider Nguyen’s application for leave to appeal against conviction.

Tran’s sentence appeal

65 Put simply, it was submitted in Tran’s written case that the sentence of 8 years’ imprisonment with a non-parole period of 5 years and 6 months was manifestly excessive because:

Tran was a mature woman, with no prior convictions;
the quantity of heroin trafficked was very much towards the lower end of the range of a large commercial quantity;
because of an election by the prosecution, the applicant had stood trial on other matters, on two separate occasions, and had been acquitted of those matters; and
there had been a lengthy delay in bringing the applicant to trial, a fact to which the sentencing judge did not accord sufficient weight.

66 Senior counsel for Tran relied entirely upon the written case in support of the application for leave to appeal against sentence. He did not advance any oral submissions in furtherance of that application.

67 That was not surprising. The sentence imposed was clearly within range. The applicant had been convicted after a trial. There were few, if any, mitigating factors of substance. She showed no remorse, and was entitled to no discount of any kind based upon the utilitarian value of a plea of guilty. Moreover, the sentence imposed in this case was entirely consistent with current sentencing practice for comparable offending. That is confirmed by a consideration of a number of comparable cases upon which the Crown relied.[16]

68 It follows that the application for leave to appeal against sentence should be refused.

Nguyen’s grounds 1, 2 and 3

69 As we have previously mentioned, at the hearing of these applications we granted Tran leave to amend her proposed notice of appeal so as to add three grounds which, in effect, mirror grounds 1 – 3 relied upon by Nguyen in his application for leave to appeal against conviction. For convenience, we will refer in the discussion which follows to the submissions put on behalf of Nguyen in relation to these grounds, though it should be borne in mind that those submissions were essentially adopted by Tran’s counsel in oral argument.

Nguyen’s submissions on grounds 1, 2 and 3

70 Although each of grounds 1, 2 and 3 are expressed in different terms, they are all essentially predicated upon the same complaint. That complaint concerned the adequacy of the trial judge’s directions to the jury concerning the elements of joint criminal enterprise. As we have previously indicated, the principle of joint criminal enterprise was the basis upon which Nguyen was charged.

71 Nguyen submitted that the trial judge erred by failing to instruct the jury that, in order to convict him, they must be satisfied that he had entered into an understanding or arrangement (amounting to an agreement) with Tran that the relevant act or acts constituting the actus reus of the offence with which he was charged would be committed.[17] In the present case, that meant Nguyen must have been found to have agreed, as part of the joint criminal enterprise, that Tran would engage in an ongoing business of buying and selling heroin, in the Giretti[18] sense, over the relevant period, in not less than a large commercial quantity. It was insufficient, on Nguyen’s submission, merely to establish that he had participated in, or agreed to, one or more individual drug transactions with Tran.

72 It was accepted by the Crown that the trial judge did not, at any stage in his charge or during the course of the trial, specifically direct the jury as to the requirement for there to have been an agreement in the sense referred to.

73 Instead, the trial judge framed the issues to be determined by the jury in terms of four discrete questions, each of which needed to be answered in the affirmative in order for both of the accused to be convicted. Those questions were as follows:

Does the evidence, looking at all the evidence, establish beyond reasonable doubt that there was a business of buying and selling heroin being conducting during this three month period as opposed to some other business activity, including some other illegal business activity?
If there was such a business of buying and selling heroin, has the evidence established that the accused you are considering participated in that business of trafficking heroin?
If ‘yes’ to both questions one and two, does the evidence establish beyond reasonable doubt that the heroin trafficking business involved trafficking in a quantity of heroin that was not less than a large commercial quantity of heroin?
If ‘yes’ to all the three above questions ... are you [the jury] satisfied beyond reasonable doubt that the accused intended to traffic in a large commercial quantity of heroin as part of that business and that he had that intent at the start of the time period of three months and throughout?

74 The trial judge commented further upon the concept of ‘participation’ (referred to in question 2) at various points during the course of the trial. In his charge to the jury, the judge said the following:

Let me now elaborate on a couple of issues. One is this question of participation in the business. Let me say what is not participation. I will give you a hypothetical relevant to this case. Taking the trial of Mr Nguyen, if you are satisfied beyond reasonable doubt that there was the business and it was over the period of time and of the nature of trafficking in heroin, but all that was established was that he knew of it, and even let us say you were satisfied beyond reasonable doubt that he agreed with it, that is not participation.
Thus, in general for there to be participation in what is called a joint criminal enterprise, this business of trafficking according to the prosecution in a large commercial quantity of heroin, requires whether it be Mrs Tran or Mr Nguyen to have done something to contribute to that enterprise, that criminal enterprise identified by the prosecution, which I will not repeat.
It is not enough for it to be proven that Mrs Tran or Mr Nguyen merely agreed that the business described should be carried out. For there to be participation by either of the accused, you need to find that the accused in question performed some conduct, either legal or illegal that in some way contributed to the commission of the crime. The commission of the crime here being the running of the business of buying and selling heroin over that period of approximately three months.

75 Subsequently, in response to a question asked by the jury as to whether ‘the accused need[s] to be involved in all transactions in order to be considered for the large commercial quantity?’, the judge said:

I will repeat a part of what I said to you in my directions of law in my charge, and it deals with this word ‘participation’ or ‘participated’ and the notion of a joint criminal enterprise, and the joint criminal enterprise here is said to be, of course, the heroin trafficking business, the subject of Question 1. The prosecution must prove beyond reasonable doubt that the accused you are considering participated in the joint criminal enterprise in some way. That is, the accused must have done something to contribute to that enterprise.
It is not enough that she or he merely agreed that it should be carried out. It is not enough that the accused you are considering knew of the business the subject of Question 1, or even knew of and approved of that business being conducted. The accused must have done something to contribute to that business, and remember it is not just a business of a week’s duration, it is a business over a period of time. That is the nature of the business you are looking at, a business identified in Question 1 over the period of three months.
This issue, this requirement of participation, is satisfied if you find that the accused you are considering performs some conduct, either legal or illegal, that in some way contributed to the commission of the crime over that period of time. Necessarily, a one-off incident would not be sufficient. You would have to be satisfied that the participation was a continuing participation.
To take an example in this case, the Bunnings incident. If that was the only incident, clearly that would be a participation but not a participation in the ongoing running of that business over the period of three months. It does not matter how important or unimportant those acts were to the completion of the enterprise so long as the person you are considering did something to assist, and the something to assist here is the participation, the doing of things that contributed to the ongoing business of trafficking in heroin over that period of time. So again, to merely know of, even approve of, such a business being conducted is not sufficient for participation.^[19]

76 Nguyen argued that the four questions posed by the trial judge, even when viewed in light of his Honour’s further directions as to the concept of ‘participation’, were deficient. That was because, in effect, all they required the prosecution to prove in order to establish the actus reus of the offence so far as Nguyen was concerned was that (a) Tran had conducted an ongoing business of buying and selling heroin, and (b) Nguyen had ‘participated’ in the conduct of that business. Put another way, senior counsel for Nguyen submitted that it was possible for the jury to have determined each of the four questions posed by the trial judge adversely to his client without being satisfied that Nguyen had, at any stage, actually formed the requisite agreement with Tran as to the carrying on of the drug trafficking business.

77 The risk that the jury might have convicted Nguyen on that basis was said to be particularly problematic in light of the manner in which the evidence fell for consideration in the present case. On the prosecution case, it was Tran who was the central figure in the conduct of the drug trafficking business. Nguyen was alleged to have assisted her in that business, in the various ways to which we have previously referred.[20] Whereas the evidence revealed that Tran had acted continuously throughout the charged period, Nguyen was said to have appeared only intermittently in the intercept and surveillance material. He was also alleged to have been involved in some but not all of the relevant transactions.

78 In that context, senior counsel for Nguyen submitted that the jury may well have concluded that Nguyen’s role in the entire enterprise was essentially confined to that of assisting Tran on an ‘as needs basis’ with various aspects of her drug trafficking activities. Although that conclusion would implicitly entail a finding that Nguyen had ‘participated’ in the drug trafficking business, it would not necessarily follow that Nguyen had formed an agreement with Tran as to the carrying on of that business.

Crown’s submissions on grounds 1, 2 and 3

79 As we have noted, the Crown accepted that the trial judge did not, in terms, provide the direction as to agreement contended for by Nguyen. However, it submitted that when viewed in light of the directions given to the jury as a whole, as well as the manner in which the case was presented at trial, it must necessarily follow from the verdict of guilty that the jury was satisfied that Nguyen had formed the requisite agreement with Tran.

80 Several arguments were put in support of this submission. First, the Crown pointed to the fact that the fourth question posed by the judge required the jury to be satisfied that Nguyen had a continuing intention to traffic in a large commercial quantity of heroin throughout the relevant period. It submitted that, in finding this requirement was satisfied, the jury must necessarily have rejected the notion that Nguyen’s participation in the drug trafficking business was confined to assisting Tran on an ‘as needs basis’. In other words, the jury could not have been satisfied that Nguyen possessed the requisite intention to traffic in a large commercial quantity of heroin throughout the relevant period unless it accepted that Nguyen had agreed to the entire drug trafficking enterprise, and rejected the proposition that any agreement must have been confined to the particular activities and transactions in which he was directly involved.

81 Secondly, the Crown submitted that the trial judge’s charge to the jury on the issue of participation needed to be understood in the context of other directions his Honour had made during the course of the trial. It referred, in particular, to the following comments his Honour had made, on the second day of the trial, in the course of addressing a question from the jury:

The Crown case in this regard is that the two accused were involved in what has been described as a joint criminal enterprise and I will come to that definition in very broad and simplistic terms. That means the prosecution case is that they were acting together for the purpose of trafficking in heroin, in the movement from source to end user; that they were acting as one, albeit the prosecution case is they had different roles.^[21]

82 His Honour went on to set out the four questions to which we have previously referred. He then continued:

So Question 1 relates to the issue of whether there was a business of trafficking in heroin, as opposed to some other matter or some other activity. Question 2, in broad summary, relates to assuming there was such a business, the person in question being a party, being a participant in that business, considering Ms Nguyen and Ms Tran.^[22]

83 It was submitted on behalf of the Crown that Nguyen could hardly have ‘acted together [with Tran] for the purpose of trafficking in heroin’, ‘acted as one’ with Tran, or been ‘a party’ in the business if he had not reached an understanding or arrangement amounting to an agreement with Loan in relation to that business.

84 Thirdly, the Crown noted that although there was an absence of any reference to an agreement in the trial judge’s charge, the opening address of the prosecutor, and the closing address of Tran’s defence counsel, did contain a number of such references. For example, in his opening address, the prosecutor said the following:

It is the Prosecution case that the two accused were trafficking heroin as part of a joint criminal enterprise. Again, that’s another specialist term, and His Honour will direct you about that. But that [sic] does a joint criminal enterprise mean? One, that the accused made an agreement with others, between themselves, to pursue a joint criminal enterprise, and that the agreement remain in existence when the offence was committed; two, that the accused participate in a joint criminal enterprise in some way; three, that in accordance with that agreement the parties to the agreement between them performed all of the acts necessary to commit the offence; four, that the accused had the state of mind necessary to commit the offence at the time of entering that agreement.^[23]

85 Similarly, counsel for Nguyen said in his closing address:

You can look, can go beyond, my client is not there, yet the prosecution says, and remember this and hold them to account, my client is said to have been involved in a joint criminal enterprise with Mrs Loan. That is, he had an agreement, he participated in an agreement to pursue an unlawful objective. His Honour will tell you more about joint criminal enterprise. That’s an important threshold issue to you as to whether or not he in fact was involved in a joint criminal enterprise on the evidence. Because, if you’re not satisfied there, those other four questions are really redundant in my submission to you. That’s a threshold issue and question you have to deal with.

86 Finally, the Crown emphasised the fact that neither Nguyen’s nor Tran’s counsel at trial took any exception whatsoever to the directions given by the judge in relation to this issue. This was so notwithstanding that the judge foreshadowed the four questions which he ultimately put to the jury in his charge as early as the second day of the trial, and that numerous references were made to them throughout the course of it. In those circumstances, the failure on the part of both Nguyen and Tran’s defence counsel to object to the directions given by the trial judge was said to be fatal to the complaint now sought to be maintained.[24]

Conclusion regarding Nguyen’s grounds 1, 2 and 3 (and Tran’s grounds 5, 6 and 7)

87 On the morning of the second day of the trial, following the prosecutor’s opening, the trial judge was confronted, even at that stage, with two questions from the jury. These were ‘definition of “trafficking” according to the law’ and ‘are there multiple charges in this trial?’. His Honour discussed these questions with counsel in the absence of the jury. He indicated that he would define trafficking for them in accordance with the provisions of the Drugs, Poisons and Controlled Substances Act but would add, as a gloss upon those provisions, a reference to the need for the Crown to establish a ‘commercial aspect to the dealing’. His Honour drew that requirement from Giretti [25] itself.

88 The prosecutor responded by saying that he seemed to recall that he had referred, in his opening, to the ‘Judicial College’, and was then immediately cut off. His Honour said that he was ‘not interested in that’.

89 In hindsight, it was a pity that his Honour was so dismissive of what is in the Charge Book regarding Giretti trafficking, and perhaps more importantly, the doctrine of joint criminal enterprise. Had he been prepared to consider the bench notes regarding trafficking under the Drugs, Poisons and Controlled Substances Act he would have come across the following passage dealing with the connection between Giretti offending and joint criminal enterprise.

Where two accused are joined in a Giretti count of trafficking, it is not necessary for the prosecution to establish that they had entered into an agreement or understanding with each other as to their respective involvements in the business, or were in a joint enterprise with each other. Nor does the prosecution have to prove that the parties ever met or communicated with each other, or were aware of the identity of the other party. It is sufficient if they can prove that the parties were both engaged in the alleged trafficking business (R v Lao and Nguyen (2002) 5 VR 129).^[26]

90 The reference to R v Lao [27] would, in turn, have taken his Honour to what this Court said regarding joint criminal enterprise, in the context of Giretti trafficking. In particular, it would have drawn attention to what Eames JA said as regards the undue emphasis that had been placed upon the need to prove an ‘agreement’ between the Lao and his co-accused in that case. His Honour stated, pointedly, that an agreement or understanding might be inferred even though the two applicants ‘acted quite independently and separately’[28], citing R v Minuzzo.[29]

91 Eames JA also referred to R v Tangye [30] where Hunt J had said, inter alia, that a joint criminal enterprise could be established through ‘an unspoken understanding or arrangement’ which, of course, could be inferred from all the circumstances. Importantly, it need not have been reached at any time before the crime is committed. His Honour added that a person participates in that joint criminal enterprise either by committing the agreed crime itself, or simply by being present when the crime is committed, and intentionally assisting or encouraging another participant in the joint enterprise to commit that crime.[31]

92 In dealing with the concept of joint criminal enterprise, his Honour would have been assisted by the discussion of that matter in the Charge Book. He would have seen that the Charge Book recommends a direction to the jury that speaks of four elements. The model charge is in the following terms:

One — the accused made an agreement with other people to pursue a joint criminal enterprise, and that the agreement remained in existence when the offence of NOO was committed.
Two — that the accused participated in the joint criminal enterprise in some way.
Three — that, in accordance with that agreement, the parties to the agreement between them performed all of the acts necessary to commit NOO.
Four — that the accused had the state of mind necessary to commit NOO at the time of entering the agreement.

93 Of course, as has frequently been said, a model charge of this kind is not to be recited as some form of mantra. Nonetheless, it provides a useful check to ensure that at least the basic matters that need to be covered are dealt with adequately.

94 At the same time, the fact that integrated directions, in the form of factual questions for the jury to determine, are increasingly utilised, and have been given statutory approval in the Jury Directions Act, suggests that a measure of flexibility greater than what would have been acceptable in the past is now recognised as desirable.

95 There can be no doubt that joint criminal enterprise required proof of some form of understanding or arrangement on the part of the co-accused. That is so irrespective of the extended definition of what constitutes such an understanding or arrangement as expressed in cases such as Tangye and Lao.

96 The issue to be determined in this application is whether, having regard to the totality of what the trial judge told the jury, by way of legal direction, they would have understood that neither Tran nor Nguyen could be convicted of this offence in the absence of some such understanding or arrangement between them.

97 In our view, that issue must be resolved in favour of the Crown. Once the four questions posed by his Honour were answered adversely to Nguyen, the jury could hardly have come to any other conclusion than that he was acting ‘as one’ with Tran in the course of this trafficking enterprise, even if he did not play as central a role as she did. The finding that Nguyen had the intention throughout the period to traffic in a large commercial quantity comes so close to a finding that he was party to an agreement of the requisite kind as to make it unreal to suggest that he was either acting independently, but in parallel with Tran, or that he was merely hired help, acting on an ‘as needs’ basis.

98 That is not to say that his Honour’s charge in this regard is free from criticism. Nor is it to absolve counsel who appeared at the trial from their obligation to remind his Honour that he had not said anything, in terms, about the need to find an agreement of the kind alleged. Counsel’s duty in that regard should have been plain.

99 In the end, we are not persuaded that the trial judge failed to make clear to the jury that they could not convict Nguyen in the absence of a finding that he was party to an understanding or arrangement of the kind alleged. The combination of the answers to his Honour’s four questions, and the evidence led by the Crown as to Nguyen’s own conduct, satisfy us that there was no substantial miscarriage of justice. We are fortified in that conclusion by defence counsel’s failure, at any stage, to take exception to his Honour’s charge, or to argue that the trial judge should have aligned his directions more closely to what the Charge Book itself recommends.

100 Tran’s reliance upon grounds 5, 6 and 7 is, if anything, less persuasive than that of Nguyen. On any view, the case against her could have been presented quite simply as one of a principal offender, without any reference whatsoever to joint criminal enterprise or any other notion of complicity. Her application for leave to appeal should also be refused.

- - - - -

^[1] Ground 2, which alleged that the verdict of guilty was unsafe and unsatisfactory, was abandoned.

^[2] R v Giretti (1986) 24 A Crim R 112 (‘Giretti’).

^[3] Tran’s Revised Written Case, 14 July 2014, [17]–[21].

^[4] Emphasis added.

^[5] Emphasis added.

^[6] Jury Directions Act s 17(a).

^[7] Ibid s 17(c).

^[8] Ibid s 17(d).

^[9] Ibid s 18(2)(h).

^[10] Criminal Procedure Act 2009 s 223.

^[11] See generally Xypolitos v The Queen [2014] VSCA 339.

^[12] [1952] HCA 3; (1952) 85 CLR 437

^[13] See generally Xypolitos v The Queen [2014] VSCA 339.

^[14] Tran’s Revised Written Case, 14 July 2014, [31]–[36], [40]–[45] (emphasis original).

^[15] Emphasis added.

^[16] R v Nguyen [2007] VSCA 165 (pleas of guilty, two kilograms of heroin, two accused sentenced to 6 years and 5 years respectively); R v Nguyen [2008] VSCA 141 (plea of guilty, precise quantity of drugs unknown, 6 years and 6 months); R v Nguyen [2008] VSCA 235 (pleas of guilty, three co-accused with differing roles and found to have trafficked in different amounts, sentenced to 8 years (4.7 kilograms), 13 years (12 kilograms) and 13 years (12 kilograms) respectively); Nguyen v R [2010] VSCA 180 (plea of guilty, 2.7 kilograms of heroin, sentenced to 7 years and 6 months); Le v R [2011] VSCA 42 (convicted after trial, 2 kilograms of heroin, two co-accused sentenced to 12 years and 6 months, and 8 years respectively); Ly v R [2012] VSCA 24 (convicted after trial, 1.4 kilograms of heroin, 10 years imprisonment); Dao v R [2014] VSCA 93 (pleas of guilty, 25.2 kilograms of heroin and 6.7 grams of methylamphetamine, two co-accused each sentenced to 18 years).

^[17] Osland v R (1998) 197 CLR 616.

^[18] (1986) 24 A Crim R 112.

^[19] Emphasis added.

^[20] See above [8].

^[21] Emphasis added.

^[22] Emphasis added.

^[23] Emphasis added.

^[24] See Jury Directions Act ss 11–15.

^[25] (1986) 24 A Crim R 112.

^[26] Judicial College of Victoria, Victorian Criminal Charge Book, [7.7.1.1], 49.

^[27] [2002] VSCA 157; (2002) 5 VR 129 (‘Lao’).

^[28] Ibid 156.

^[29] [1984] VicRp 34; [1984] VR 417, 430.

^[30] (1997) 92 A Crim R 545.

^[31] R v Tangye (1997) 92 A Crim R 545, 556-7 (‘Tangye’), cited in Lao [2002] VSCA 157; (2002) 5 VR 129, 167 [119].

Authorities Cited13

Referred to (13)