IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	 Revised
Not Restricted
Suitable for Publication	
Case No. CR-18-01596

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
CHUNG KIEN NGUYEN		

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JUDGE:	HER HONOUR JUDGE CANNON 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	3 June 2019	
DATE OF RULING:	4 June 2019	
CASE MAY BE CITED AS:	DPP v Nguyen Ruling No. 1	
MEDIUM NEUTRAL CITATION:	[2019] VCC 1403		

 RULING 1.
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REASONS FOR RULING
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Subject:		CRIMINAL LAW
Catchwords:	Ruling No. 1 – Admissibility of evidence – Relationship evidence -Tendency evidence - Record of interview – Passages relevant to accused’s state of mind in respect of consignment contents – Prejudicial nature of evidence does not outweigh probative effect – Appropriate jury directions to be given
Legislation Cited:	Crimes Act 1914 (Commonwealth); Evidence Act 2008
Ruling:	Impugned evidence admissible as to relationship and tendency evidence – Also admissible as relevant circumstance as to the accused’s state of mind relating to the offending - Refuse Defence Application to exclude evidence as agitated for 

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr Ihle	Commonwealth DPP	
			
For the Accused	Mr Barker	Emma Turnbull Lawyers	

HER HONOUR:

INTRODUCTION
1	The first ruling is in relation to the admissibility of the prior trafficking evidence, if I can call it that.
2	The accused man, Chung Kien Nguyen, has been charged with attempting to import a border controlled drug, namely cocaine, in a commercial quantity between 8 March 2018 and 22 March 2018 (‘the alleged offending’).  He pleads not guilty to the charge.  
3	The central matter in issue is whether the accused had the requisite state of mind in relation to the contents of a consignment (‘the consignment’) which was to be imported into Australia.  The accused says that he was meant to receive the consignment on behalf of an overseas acquaintance “Kenneth” and that, at all material times, he believed the consignment to contain car parts.
4	The accused admits that the consignment in question was addressed to a Jiahao Xen, 16 Raspberry Grove, Mernda, with a contact phone number for the consignment that was in fact his.  He accepts that the name Jiahao Xen was a false name which he used for the purposes of dealing with the consignment, although says that this was a name given to him by Kenneth in order to facilitate the importation.  However, he maintains that he expected that the consignment would contain spare car parts, as the consignment description indicated. 
5	In fact, the consignment had been intercepted by authorities in the USA and was found to contain 5.139 kilograms of a substance including cocaine, with later analysis to reveal that the substance contained 3.319 kilograms of pure cocaine.  The cocaine was removed by the authorities in the USA and the Australian authorities were notified.  The consignment continued on to Melbourne by air cargo in early March 2018.
6	The accused accepts that the Australian Federal Police (AFP) took possession of the consignment on 9 March 2018 and that he, using the name Jiahao Xen, contacted the cargo holder, Toll Dnata, to arrange for the release of the consignment.  He also accepts that he agreed to organise a Customs clearance agent in respect of the consignment, and engaged Platinum Freight, subsequently paying them for their services.  He accepts that he spoke with personnel who purported to be from Platinum Freight on 19 and 20 March 2018.  However, these people were actually police officers.  He accepts that he answered to the name Jiahao in relation to each of the phone calls concerning the delivery of the consignment.
7	He also accepts that search warrants were executed at his home and at the home of a third party, a Mr Tsang, whom the accused had arranged to accept delivery of the consignment.  In his record of interview, the accused accepted that Mr Tsang was to be paid for this service, although there is some dispute as to how much Mr Tsang was to be paid for accepting delivery of the consignment.
8	The Crown seeks to rely on extracts from the accused’s record of interview which are set out in the Notice of Tendency Evidence dated 24 May 2019, for three purposes:
(i)	As tendency evidence, to demonstrate a tendency of the accused to knowingly assist “Kenneth” in dealing with illicit drugs;
(ii)	As relationship evidence, demonstrating the nature of the relationship between the accused and Kenneth in respect of dealing with illicit drugs;
(iii)	As circumstantial evidence which showed that the accused knew that Kenneth was in the business or habit of dealing with large quantities of illicit substances from which an inference could be drawn that the accused knew or was reckless as to whether the consignment contained border controlled drugs.
9	Mr Barker, on behalf of the accused, sought exclusion of each of the references in the record of interview on the basis that they amounted to no more than rank propensity evidence or evidence of bad character, which did not satisfy the relevance test pursuant to s55 of the Evidence Act 2008.  He submitted that even if the evidence were found to be relevant, the impugned extracts from the record of interview should be excluded pursuant to either ss135 or 137 of the Evidence Act 2008.  
10	He submitted that in circumstances where he did not propose to adduce evidence of the accused’s good character, the evidence could not be adduced as it amounted to nothing more than bad character evidence and was unfairly prejudicial to the accused.
The Relevant extracts from the record of interview, are as follows:
A. Q&A 227-268
11	In the lead-up to this extract of the interview, the accused tells police that he expects Kenneth to collect the diesel parts the following morning, and he thought that he was on a flight, coming in from Hong Kong or Japan.  The accused tells police that he knows Kenneth well and that they were party friends and their relationship had developed into being good friends.  He said that this was why he was willing to pay $2,000 for the agent’s fees in respect of the consignment.  He tells police that he did not know why the consignment was not in Kenneth’s name, but that now the police had informed him that the consignment contained cocaine, this must have been to protect himself.  He said that now that he had the big picture, he had realised that Kenneth was importing the consignment in someone else’s name “and then let me do the shit without my – without I – without letting me know it’s drugs …” (217).
12	He goes on to tell police that he goes to parties with Kenneth, at which Kenneth does drugs but he (the accused) does not, but Kenneth did not do big quantities of drugs.  
13	At Q225, the accused asks if he will be charged if he tells police something not related to the current investigation, and police tell him that they were just looking at what happened today.
14	The ensuing passages are those in dispute between the parties:
15	The accused says “it’s not big, like, ah, he did quite a bit of dodgy shit, and then always ask for my help.  And that’s why I told you, I’m happy to help you.” (227)
16	The interview proceeds as follows:
Q228 Yep.
A. “Coz I’m pretty sure, I’m not in ---”
Q229 – So tell us the story.
A. “There was one time there was Ice.
Q230 – Ice.
A. “Like you still need, like, a bag.
Q231 – Like methamphetamine?
A. “Two bags of meth”.
Q232 – So when you say two bags, that looks like a pretty bag.
A. “Yeah it is a big bag.
Higgins: That’s a big bag of meth.
Q233 – So how much was there? 
A. “I don’t know, just like bag like this, and then this, you know.”
? Jayatilake: That’s a big bag my friend.
Q234 – That’s heaps.
A. “Is it?”
That’s a lot of Ice.
Q235 – Don’t you think so?
A. “I don’t know, I don’t do drugs.”
Q236 – Right, so tell us about this Ice.
Q237 – Keep going man.
A. “Yeah, so, and then he asked me to help him to give this to this other dude and collect the money for him, and then he’ll pay me.”
Q238 – So you delivered it for Kenneth?
A. “I did it before.”
Q239 – Yeah, I’m not charging you with it.
A. “Yes.”
Q240 – Kenneth said “take this Ice to this guy”.
A. “Yes.”
Q241 – So you did?
A. “I did.”
Q242 – And you (?he) paid you some money.
A. “Yes.”
Q243 – So I know I asked you before, but did he pay you any money this time for this box?
A. “No. Nothing. He asked me to do him a favour. I haven’t – I – I help him pay up front and then I keep chasing him back for the money. He said just go down to his shop and he’ll pay for me.”
The accused goes on to explain where Kenneth works as a manager.  He then explains that he is trying to tell the police officers two different things – the first thing is that when he delivered the Ice for Kenneth, he was paid about $500 or $600.  He is then asked how much the guy gave him for the Ice and he answered “that’s a good question. There’s a whole stack of money. All 50 notes.” (260)
Q261 – Bigger than the five grand, six grand you’ve got?
A. “Yeah.”
He then goes on to say he cannot remember how much “is here”.  He says “it definitely was bigger than six grand, but I – I’m trying, but I really can’t – it’s back quite a while ago already.  It’s like two or three months already. Yes. But still he do – he does it continuously I know …”.(263)
So this is only one in like – one in 10 times that I’m helping him. (264)
He goes on to say “so he still do a lot of time, but he don’t – he asks for someone else”.(265)
Q266 – Doesn’t get you all the time?
A. “Yeah he doesn’t get me all the time.”
Q267 – And he paid you what? 500?
A. “Yes.  I just take out the money from here directly and then pass it all back to …”
Q268 – Okay. And you said something about you have to go to his bar to get paid, what were you talking about then?
A. “Yes. This is the second thing I was telling you.”
He then goes on to talk about paying the agent’s fee for the consignment.
B. Q&A 692-706
17	The second impugned passage is as follows:
Q692 – Is there anything else that he (Kenneth) does?
A. “There was one time he asked me to organise TFN. Tax file number plus ABN.”
Q693 – TFN and ABN.
A. “It was so he can hire a warehouse. He told me about this.”
Q694 – What’s he want the warehouse for?
A. “Container.”
Q695 – Container?
A. “Yes. He told me about this.”
Q696 – What’s in the container?
A. “I think it’s the same shit.”
Q697 – A container of Medicare cards is a lot of Medicare cards.
A. “No, not – ah, drugs. I would say drugs.”
Q698 – And you think it probably is?
A. “I think it probably is drugs.”
Q699 – Or you know it is?
A. “I think it’s drugs. I never – I never really – I’m just a small potato, like you know what I mean.”
Q700 – A small potato?
A. “I’m just trying to earn some money when he ask me to go pick up stuff.”
Q701 – Mmm.
A. “I never really – I – I have heard. Like, I know what’s happening for that container. But I – I don’t think it did work out. I don’t know. He ask me to look for a warehouse before.”
Q 702 Mmm-hmm.
A. “I tried, but – just – you know. I just come.”
C. Q&A 767-770-the third impugned passage
18	Q767 – But the same guy that asked you about a warehouse, maybe renting him a warehouse.
A. “Yep. Is Kenneth.”
Q768 – Is bringing in car parts?
A. “I don’t know, he just said he want …”
Q769 – And you didn’t think, “mmm, not sure about this?”
A. “He just – he just want – he wanted – want me to look for a warehouse that he can hire. Plus ABN and TFN.
Q770. Which you told us that you think he might have used to bring drugs into Australia.
A. “Yes I did.”
The accused said that on the occasion of the alleged offending now before me, he called and double-checked with Kenneth about whether he thought there was anything dodgy inside the consignment, and Kenneth had told him “no”.  He said that this is why he called Oscar “or else I would never call Oscar into this”.
Q&A 903-4th passage
19	After police question the accused about knowing that Kenneth moved drugs and that in these circumstances he gave the accused a SIM card and fake ID, the accused says that he gave him the fake ID ages ago.  
20	The passage relied on by the Crown is as follows:
Q903 – Yeah. And then he says “I’m bringing in a package. And you know this guy moves drugs, you said he did.”
A. “Yes, but I double confirmed with him. This dude sometimes deal with dodgy things, but sometimes he do good things as well. Let’s say buying alcohol we’re like doing this kind of thing. He’ll tell me I go buy it, and then I sell it to him. I can earn a bit of money. That’s why I trust him.  He helped – helped me make a little bit of money.”
The accused goes on to say that he did not think that there was anything dodgy about the consignment that he was asked to collect.  
21	I now come to my ruling in respect of these pieces of evidence: In my view, each of the passages sought to be relied upon by the Crown and sought to be excluded by defence, are relevant to the accused’s state of mind in relation to the contents of the consignment that he was supposed to collect.  Taken at its highest, the evidence reveals that the accused is aware that Kenneth is involved in the movement of significant quantities of illicit substances, both domestically and, in relation to the shipping container, likely from overseas. Further, the evidence reveals that the nature of the relationship between Kenneth and the accused is one in which the accused is prepared to help facilitate the movement of significant quantities of  illicit substances, in the nature of border controlled drugs, for remuneration. 
22	In the case before me, the accused has distanced himself from the direct delivery of the consignment, with the arrangement in place that his friend is to take delivery for remuneration, and that the accused will facilitate ultimate collection of the consignment, using a false name attached to a number actually owned by him.  Further, he pretends to be the false identity in respect of communications between himself and the ostensible consignment agents.
23	In circumstances where the accused asserts that he believed that the consignment contained car parts, the Crown ought be able to rebut this assertion by adducing evidence of the nature of the relationship between the accused and Kenneth – that it involved, at least in part, the movement of significant quantities of drugs in the past, and to show that the accused had a tendency to assist Kenneth with the movement of illicit substances in significant quantities.
24	In my view, the impugned evidence is admissible as to relationship evidence and as a relevant circumstance in respect of the accused’s state of mind in relation to the alleged offending.  Further, the evidence is admissible as tendency evidence, as the evidence as to the accused’s knowledge of Kenneth’s activities and preparedness to help with these, in conjunction with the other evidence of the accused’s conduct in distancing himself from the delivery of the consignment will have significant probative value in relation to the accused’s state of mind as to his knowledge or belief in relation to the contents of the consignment. It is evidence that the accused had a tendency to knowingly assist Kenneth in the movement of or dealing with significant quantities of illicit substances which would qualify as border controlled drugs.  I do not accept that the preparedness to facilitate such dealings at a domestic level is qualitatively different from what the accused is alleged to have done in relation to the alleged importation.  
25	In any event, as the learned prosecutor indicated, the questions and answers in respect of housing drugs in a shipping container coming into Australia, indicate a preparedness on the accused’s part to assist with the dealing of illicit substances, whether these are sourced within Australia or not.  
26	Further, although the prejudicial nature of the evidence is obvious, and considerable, I am of the view that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused and further, it ought not be excluded pursuant to ss135 or 137 of the Evidence Act.  In view of the central issue in this case, a good deal of the strength of the probity of the impugned evidence is the fact that it is so relevant to the central issue-this largely contributes to its prejudicial nature as well. The quality of the evidence is heightened by the fact that it comes from the accused’s own mouth in a record of interview.
27	Appropriate directions will be given to the jury, which would be expected to be followed, in relation to impermissible reasoning concerning such evidence. The accused’s other answers in the record of interview, where he explains himself in relation to his knowledge and belief as to the contents of the consignment will be matters for the jury’s consideration as well.
28	Therefore, the impugned evidence is admissible in the three ways agitated for by the prosecution and I refuse to exclude it for any of the reasons advanced by defence.