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Court of Criminal Appeal 19 December 2000

R v Kim Van Mai

[2000] NSWCCA 517

Also reported as 119 A Crim R 327
Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER MISCARRIAGE OF JUSTICE

Citation: Kim Van Mai v R [2000] NSWCCA 517
Court: NSW Court of Criminal Appeal
Date: 19 December 2000
Judges: Meagher JA, Hidden J, Howie J

Background

The appellant was convicted in the District Court of being knowingly concerned in the importation of heroin into Australia. The heroin had been secreted inside a parcel of dried fish products addressed to a name the appellant denied knowing. The appellant was present when the parcel was delivered, handled it, and transported it to premises where it was later recovered by police.

The appellant did not give evidence at trial. His account of events, including a claim that he believed the bag he carried contained oranges for a restaurant, had been given to police in a recorded interview and placed before the jury through that means.

The Crown case rested on inference from the surrounding circumstances, including the appellant's association with a co-accused who had recently returned from Cambodia, his handling of the parcel, and what the Crown characterised as lies told to police demonstrating a consciousness of guilt.

  • Whether the trial judge's direction to the jury about the significance of the appellant's election not to give evidence was legally correct
  • Whether that direction, given in conformity with the then-prevailing approach in R v OGD, was rendered erroneous by the subsequent High Court decision in RPS v The Queen
  • Whether any error caused a substantial miscarriage of justice, or whether the proviso in s 6(1) of the Criminal Appeal Act 1912 applied to preserve the conviction

Decision

The trial judge directed the jury that, where Crown evidence was left undenied or uncontradicted by the accused, any doubts the jury might have had about that evidence could more readily be discounted and the evidence more readily accepted as true. This direction followed the approach set out in R v OGD, which drew on the High Court's reasoning in Weissensteiner v The Queen. However, by the time the appeal was heard, the High Court in RPS v The Queen had cast doubt on precisely this type of direction, questioning whether it was appropriate to instruct a jury that silence could bolster the Crown case in this way.

The Court of Criminal Appeal found the direction was erroneous in light of RPS. The error was not merely technical. The appellant's central explanation, that he did not know the bag contained drugs, had only emerged fully through additional witness statements taken after a first trial ended in a hung jury. The jury had therefore been misdirected at the point in the case where the contested mental element, specifically knowledge of the drug and its importation, was the critical issue.

On the proviso, the Crown argued that the case against the appellant was so strong that no substantial miscarriage of justice had occurred. The Court rejected this submission. While knowledge that the bag contained a drug might be readily inferred, knowledge of its importation into Australia was a separate and more demanding element of the offence. The Court was not satisfied the Crown case was so overwhelming as to deprive the appellant of a real chance of acquittal, applying the test from Mraz v The Queen.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered (the Court declined to enter a verdict of acquittal, notwithstanding that this was a second trial)

Key Takeaways

  • A direction that a jury may more readily accept Crown evidence because an accused has not denied or contradicted it was found to be erroneous following RPS v The Queen, which cast doubt on that aspect of R v OGD.
  • Where a direction misstates the legal consequences of an accused's silence on what is plainly the live issue at trial, that error is unlikely to be treated as merely academic.
  • The proviso under s 6(1) of the Criminal Appeal Act 1912 did not save the conviction because the Court could not be satisfied the appellant had not lost a real chance of acquittal, particularly where knowledge of importation, distinct from knowledge of the drug itself, remained genuinely contestable.
  • A second trial does not automatically attract an acquittal on appeal; the Court of Criminal Appeal confirmed that a new trial remains the appropriate order where the interests of justice require it.
  • Prior statements to police placed before the jury as a de facto account do not carry the same weight as sworn evidence, and a misdirection about the accused's silence remains significant even where some version of the accused's account has reached the jury through other means.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 20
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- Weissensteiner v The Queen (1993) 178 CLR 217
- R v OGD (1997) 45 NSWLR 744
- RPS v The Queen (2000) 74 ALJR 449
- Mraz v The Queen (1955) 93 CLR 493
- R v Covill [2000] NSWCCA 231
- R v Dang [2000] NSWCCA 269
- R v Hannes [2000] NSWCCA 503