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Court of Criminal Appeal 15 September 2000

Regina v YE

[2000] NSWCCA 401

Also reported as 116 A Crim R 347
Drugs

Citation: Regina v YE [2000] NSWCCA 401
Court: NSW Court of Criminal Appeal
Date: 15 September 2000
Judge(s): Newman J, O'Keefe J, Whealy J

Background

The appellant, a Chinese national who had lived in Australia since 1989, was convicted in the District Court of possessing prohibited imports under s 233B of the Customs Act 1901, specifically approximately 21 kilograms of heroin at approximately 75 per cent purity. The charge arose from events on 24 July 1999, when police observed the appellant accept a trolley suitcase placed in the boot of his car by one of two men who had arrived in Australia from overseas and had been under police surveillance.

The appellant was arrested moments after the handover. He maintained throughout that he had no knowledge the suitcase contained heroin or any narcotic substance. His account was that he had been asked by a friend in China to assist a visiting countryman, and that he believed he was simply providing transport assistance as a favour.

At trial, the Crown relied on a range of circumstantial evidence. The jury convicted, and the appellant was sentenced to 12 years imprisonment with a non-parole period of eight years. The trial judge subsequently issued a certificate under s 5(1)(b) of the Criminal Appeal Act 1912 confirming it was a fit case for appeal on the ground that the conviction was unreasonable having regard to the evidence.

  • Whether the conviction was unreasonable, or could not be supported, having regard to the evidence
  • Whether the trial judge erred in failing to direct a verdict of acquittal at the close of the Crown case
  • Whether there was sufficient evidence to establish the appellant's knowledge that the drugs in his possession constituted a commercial quantity

Decision

The Court of Criminal Appeal upheld the appeal on the ground that the conviction was unreasonable. Each judge concluded that the Crown's circumstantial evidence was insufficient to exclude a reasonable hypothesis of innocence. The Court applied the test from M v The Queen (1994) 181 CLR 487, which requires an appellate court to set aside a verdict where there is a significant possibility that an innocent person has been convicted.

Whealy J, delivering the first judgment, examined the appellant's account in detail and found it was not contradicted by any positive evidence. The appellant's explanation, that he was acting on the request of a trusted friend in China to assist a visiting countryman, was capable of belief. His behaviour before and after the handover was not shown to be inconsistent with innocence.

O'Keefe J concluded that the Crown's 66 items of circumstantial evidence, when examined carefully, were not sufficiently probative. The judge observed that those items would only appear compelling to a person who had already assumed the appellant's guilt and worked backwards through the facts. The circumstances did not carry an inference of knowledge of such force that it could not reasonably be gainsaid.

The Court found it unnecessary to resolve the third ground of appeal concerning knowledge of commercial quantity, given the success of the second ground. Newman J agreed with the reasons of both O'Keefe J and Whealy J.

Orders Made

  • The appeal against conviction is upheld
  • The conviction is set aside
  • A verdict of acquittal is entered in lieu of the conviction

Key Takeaways

  • The Court of Criminal Appeal confirmed that under s 6(1) of the Criminal Appeal Act 1912, an appellate court must set aside a conviction where a significant possibility exists that an innocent person has been convicted, even where a jury had the advantage of seeing and hearing the witnesses.
  • A conviction for drug possession under s 233B of the Customs Act 1901 requires the Crown to prove knowledge of the nature of what is possessed; an accused's mere physical custody of drugs does not establish that element.
  • Where circumstantial evidence is the foundation for a finding of knowledge, that evidence must be capable of excluding a reasonable hypothesis of innocence, and a large number of individually weak or equivocal circumstances does not cure that deficiency simply by accumulation.
  • In dismissing the relevance of the Crown's 66-item list of suspicious circumstances, the Court treated evidence that could only appear significant through a lens of assumed guilt as legally insufficient to support the conviction.
  • An accused's uncontradicted explanation, even if implausible to some, may be sufficient to prevent the Crown from discharging its burden of proof beyond reasonable doubt where no positive evidence directly refutes that explanation.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)

Cases
- M v The Queen (1994) 181 CLR 487
- Doney v The Queen (1990) 171 CLR 207
- Jones v The Queen (1997) 191 CLR 439
- Fleming v The Queen (1998) 197 CLR 250
- Knight v The Queen (1992) 175 CLR 495
- Chidiac v The Queen (1991) 171 CLR 432
- Edwards v The Queen (1993) 178 CLR 193
- Meissner v The Queen (1995) 59 ALJR 693
- Martin v Osborne (1936) 55 CLR 367
- The Queen v R (1989) 18 NSWLR 74
- JMR (1991) 57 A Crim R 39
- Attorney-General's Reference (No 1 of 1983) (1983) 2 VR 410
- The Queen v Mackenzie (1995) 82 A Crim R 473