R. v. TRUONG MUOI

IN THE COURT OF APPEAL

1995, No. 754
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 20 October 1995 the applicant was convicted after trial by His Honour Judge Wilson in the District Court of trafficking in a mixture containing 12.74 grammes of heroin and later she was sentenced to 3½ years imprisonment. She now applies for leave to appeal against her conviction.

The background

2. Acting on information police officers went to an address in Queen's Road with a search warrant. They went to a rear cubicle on the second floor of the building. Inside that cubicle was the applicant and her co-accused, who gave evidence against her at the trial. The police demanded entry but the door was locked and entry was not given. Inside, there were drugs, drug packing and measuring paraphernalia - some of which was being thrown out of the window at the time the police were at the door. They were later found in the lane outside. In the order to resolve the matter, the police kicked the door in, slightly injuring the applicant. Inside, they found a white powder - nothing more significant than flour -scattered all over.

3. After a search, bags of drugs containing 7 grammes of heroin were found inside. There was a hammer in a drawer with traces of heroin on it. Scales in a box suitable for weighing heroin with traces of the drug on it were found. Those scales had the applicant's left thumb print on them. A blending and mixing machine was found. That had the applicant's palm print on it together with traces of heroin. Keys were found in a drawer which fitted the main entrance and the entrance to the cubicle.

4. Outside in the lane were plastic bags containing the rest of the drugs in the charge, a spoon with traces of heroin, pieces of paper, one of which had been used to wrap drugs, and also a page torn from a calendar. The page from the calendar had five fingerprints and one thumb print from the applicant. Those prints were on each side of the piece of paper and from each of her hands.

5. The floor in the building was rented to the applicant. She had sublet half of it. She had been seen coming and going to the rear cubicle of the flat by tenants. Her co-accused was also seen there frequently but neither was thought to live there.

6. The co-accused's evidence - as an accomplice - was that he was an addict who visited the flat for the purpose of smoking and obtaining heroin from the applicant. He explained that his usual supplier had died. He knew the applicant because he had been a shipmate of her husband. It was he, he said, who threw everything out of the window when the police arrived. But he gave evidence that he knew nothing of the drugs in the flat.

The Applicant's Defence

7. The applicant's defence was that her co-accused was her sub-tenant. She produced later a rent receipt which the judge thought to be suspicious. She had only gone on this day to collect rent. She had found that her tenant, the accomplice, had spilt flour all over and she offered to help him clean it up. By this means, she explained her finger and palm prints in the various items in the flat. A bank savings book was found on a shelf and which was admittedly hers. There were keys in the drawer which belong to her. Her explanation was that the police had taken them out of her handbag and placed them where they were found. She knew nothing about the drugs and was astonished to see the co-accused throwing things out of the window. She thought it was not appropriate for her to open the door when the police arrived.

The Application

8. The co-accused's evidence contained a number of astonishing inconsistencies. They have been itemised helpfully by Mr Oderberg who appears for the applicant. They can be summarised. He had pleaded guilty - it would appear - to trafficking in all the drugs found both in the flat and out in the street. But in evidence, he denied any knowledge of the drugs found in the cubicle. He said that he had processed drugs in the flat only once, but in his previous statement he said he had processed drugs there frequently. He said that he did not know why the flour was on the floor but he said in his confession statement that he knew it was flour. There were various other inconsistencies in his evidence.

9. The applicant gave evidence explaining what otherwise was a completely overwhelming case against her. The real issue which the judge had to resolve was that between the accomplice's evidence and that of the applicant. He dealt with the accomplice as follows. He set out his evidence and said:

"D2 of course was an accomplice and I warn myself of the danger of relying upon his evidence. Nevertheless I thought D2 a reliable witness."

The applicant's evidence was also set out without real comment except on her evidence concerning the receipts for rent. He said:

"Although it is not necessary that I make any finding I was very sceptical about the alleged receipts for rent from D2 produced by D1."

10. Mr Oderberg submits that it was incumbent upon the judge in the particular circumstances of this case to properly evaluate the evidence both of the accomplice and of the applicant in this reasons for verdict. He put it in this way. The judge must give reasons which can be broadly understood by an accused person so that he may readily understand why the judge has made his finding of guilt.

11. The accomplice's evidence was central to the issue before the judge. The judge never said that he could ignore the evidence of the accomplice and consider just the circumstantial evidence and thereby reject the explanation of the applicant. In these circumstances, were the reasons given by the judge adequate? His statement that he thought D2 a reliable witness cannot live with the inconsistencies. Of course, the judge may have put it unfortunately. He may have intended to say more than he did. It may be that he thought the witness reliable upon the main issue between the accomplice and the applicant, but he never said so. In the circumstances, it seems to us that he at least ought to have explained why he found the accomplice to be reliable.

12. We turn then to the evidence of the applicant. She is a lady 41 years of age and of good character. Her evidence was clearly in the judge's mind because he set out her defence. But simple fairness required him to say something of his view about her evidence and to explain why her evidence was rejected. All he said was this:

"The quantity of drugs found is considerable. I am satisfied both defendants were knowingly engaged in a drug transaction inside the locked room and I am satisfied that D1 is guilty as charged."

Conclusion

13. In the result, we are persuaded that the reasons were inadequate and that we should treat this application as the appeal and allow the appeal. But before leaving the matter we should add that we are not to be taken as deciding that a District Court judge in giving reasons has to indulge in an elaborate evaluation and detailed consideration of all the evidence. It is quite sufficient for him to set out very briefly and in broad terms his reasons for accepting or rejecting a witness on the main issues in the case. Unfortunately, the judge failed to do that. Those are the circumstances in which we allow the appeal.