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Court of Criminal Appeal 5 December 2002

Regina v Vincent Yiu Chen Fung

[2002] NSWCCA 479

Also reported as (2002) 136 A Crim R 95
Drugs

Citation: Regina v Vincent Yiu Chen Fung [2002] NSWCCA 479
Court: NSW Court of Criminal Appeal
Date: 5 December 2002
Judge(s): Beazley JA; Sully J; Hulme J

Background

The appellant was convicted in the District Court of supplying not less than the large commercial quantity of heroin, an offence under section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) carrying a statutory maximum penalty of life imprisonment. He was sentenced to five years' imprisonment with a non-parole period of three years and nine months.

The Crown case relied heavily on police surveillance evidence gathered over several days in June 2000. Officers observed the appellant meeting with two other men, Micalizzi and Lammas, in the Sydney CBD. Intercepted telephone calls connected the appellant to Micalizzi. Police then observed the appellant drive Micalizzi a short distance, after which Micalizzi was seen carrying a back-pack later found to contain multiple packages of compressed powder confirmed to be heroin.

The appellant appealed against conviction. The Crown separately appealed against the sentence as inadequate. The majority of the Court allowed the conviction appeal and ordered a new trial, making it unnecessary to determine the Crown sentence appeal.

  • Whether the evidence was sufficient to establish, beyond reasonable doubt, that the appellant knew the back-pack contained heroin (or any prohibited drug)
  • Whether the trial judge's directions to the jury adequately addressed the element of knowledge
  • Whether the trial judge's intervention during the summing-up, responding to defence counsel's address, gave rise to an unfair trial
  • Whether errors in the trial, if established, warranted a new trial or an acquittal

Decision

The majority (Beazley JA and Sully J) allowed the conviction appeal, while Hulme J dissented and would have dismissed it. The central contest in the majority's reasoning concerned the element of knowledge: specifically, whether the Crown had properly established that the appellant knew the back-pack he carried in his vehicle contained a prohibited drug. The majority found that the jury had not been adequately directed on this critical question, and that the resulting misdirection was material to the verdict.

The majority's concern focused on whether the jury had been properly instructed on how to approach the question of knowledge in the context of the circumstantial evidence presented. The intercepted telephone calls and surveillance observations were the primary means by which the Crown sought to establish a connection between the appellant and the drug transaction. However, the majority considered that the directions given did not sufficiently guide the jury through the reasoning required to draw inferences about the appellant's state of mind from that evidence.

Hulme J, in dissent, concluded that the trial judge's directions, taken as a whole, did not misstate the law and that no substantial miscarriage of justice had occurred. His Honour reviewed the remarks the trial judge made in response to defence counsel's address, finding them to be moderate, targeted, and not directed at the defence case itself. He concluded that the remarks provided no basis for interfering with the verdict and that the appeal should be dismissed.

Because the majority allowed the conviction appeal and ordered a new trial, the Court did not proceed to determine the Crown's appeal against the adequacy of the sentence.

Orders Made

  • The appeal against conviction was allowed.
  • The conviction and sentence were quashed.
  • A new trial of the appellant was ordered.

Key Takeaways

  • The Court of Criminal Appeal allowed the conviction appeal on the basis of concerns about the jury directions on knowledge, a critical element of a drug supply offence under the Drug Misuse and Trafficking Act 1985 (NSW).
  • A charge of supplying a large commercial quantity of a prohibited drug requires proof that the accused knew the substance involved was a prohibited drug; inadequate directions on this element can constitute a material misdirection warranting a new trial.
  • Where a conviction appeal is allowed and a new trial ordered, any related sentence appeal (including a Crown appeal against leniency) does not fall for determination in the same proceedings.
  • In dissent, Hulme J confirmed that a trial judge retains a duty to correct what the judge reasonably considers to be improper or misleading submissions by defence counsel, provided the correction is cast in moderate terms and directed at the submission rather than counsel or the defence case generally.
  • Quashing a conviction does not necessarily result in an acquittal; the Court of Criminal Appeal may instead order a new trial where the interests of justice require it.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Criminal Appeal Act 1912 (NSW), s 5D
- Customs Act 1901 (Cth)
- Evidence Act 1995

Cases
- Bahri Kural v The Queen (1987) 162 CLR 502
- Pereira v Director of Public Prosecutions (1988) 35 A Crim R 382
- Festa v The Queen [2001] HCA 72
- M v The Queen (1994) 181 CLR 487
- KRM v R (2001) 206 CLR 221
- Lau (1998) 102 A Crim R 167