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Court of Criminal Appeal 1 May 2003

Leung v Regina

[2003] NSWCCA 51

Also reported as 144 A Crim R 441
Drugs
CRIMINAL LAW EVIDENCE MORE THAN COMMERCIAL QUANTITY CIRCUMSTANTIAL CASE FALSE BANKING AND OTHER DOCUMENTATION WILFUL BLINDNESS

Citation: Leung v Regina [2003] NSWCCA 51
Court: New South Wales Court of Criminal Appeal
Date: 1 May 2003
Judge(s): Meagher JA, O'Keefe J, Bell J

Background

The appellant was convicted by a District Court jury of attempting, without reasonable excuse, to obtain possession of narcotic goods exceeding a commercial quantity, contrary to s 233B(1)(c) of the Customs Act 1901 (Cth). The offence related to a May 1997 operation involving 78.07 kg gross of heroin (containing 54 kg of pure heroin) concealed inside cans in a shipping container that had arrived at Port Botany from China. Australian Customs officers had detected the concealed heroin through x-ray screening of the container before any recovery attempt was made.

The appellant was sentenced to 20 years' imprisonment, with a non-parole period of 12 years, dating from 17 August 1999 when he entered custody. The commercial quantity threshold for heroin under the relevant legislation was 1.5 kg, meaning the quantity involved exceeded that threshold by more than 30 times.

The appellant challenged both his conviction and his sentence on multiple grounds. On conviction, he raised issues concerning the admission of character and credibility evidence, the conduct of the Crown Prosecutor's cross-examination and address, and several directions given by the trial judge to the jury. On sentence, he argued the penalty was manifestly excessive and that the trial judge had overstated his role in the drug enterprise.

  • Whether evidence going only to the appellant's credit was wrongly admitted, including evidence relating to a prior entry into Australia using a false name and false documents, and false banking documentation
  • Whether the Crown Prosecutor's cross-examination and address improperly raised the appellant's propensity to commit criminal acts and his general bad character
  • Whether the trial judge's directions on lies, credibility, and wilful blindness contained legal error
  • Whether the trial judge erred in refusing to admit evidence from the appellant's wife about his explanation for fleeing after arrest
  • The proper scope of s 108(3) of the Evidence Act 1995, including whether it is limited to the witness currently giving evidence against whom an allegation is made
  • Whether limitations apply to the use of a prior consistent statement admitted only under s 108(3)
  • Whether the sentence was manifestly excessive, and whether the trial judge overstated the appellant's role in the criminal enterprise

Decision

The Court dismissed the appeal against conviction, finding no ground established miscarriage of justice sufficient to warrant intervention. On the evidence grounds, the Court examined the ambit of s 108(3) of the Evidence Act 1995 and held that the provision is not limited to the particular witness in the witness box against whom a relevant allegation has been made. The Court also addressed the procedure to be adopted when prior consistent statements are admitted under that provision, and the limitations that apply to the use of such statements.

On the jury direction grounds, the Court considered the trial judge's directions concerning lies, credibility, and knowledge. The direction that if the accused had acted in a way carrying a significant or real chance his conduct involved narcotic goods and persisted regardless, the jury could infer knowledge, was examined in the context of the wilful blindness doctrine. Similarly, the direction that deliberately clouding one's mind by declining to make any inquiry was a matter the jury could consider was assessed. While certain errors were identified in the directions and in the handling of prior consistent statement evidence, the Court found these errors did not produce a miscarriage of justice.

On the sentence appeal, the Court rejected the argument that the trial judge had overstated the appellant's role. The Court found that the evidence supported the conclusion that the appellant performed an organisational role in the relevant part of the criminal enterprise, going beyond that of a mere courier or driver, even though he was not the mastermind. The Court observed that in most cases it will not be possible to determine an accused's precise role, and that role must be inferred from the circumstances. The available circumstances provided ample basis for the trial judge's finding.

The Court upheld the sentence. Given the seriousness of the offence, the quantity of heroin involved, and the significance of the appellant's involvement, it could not be said the sentence was manifestly excessive. Leave to appeal against sentence was granted but the appeal on that ground was also dismissed.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against severity of sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • Section 108(3) of the Evidence Act 1995 is not limited to the particular witness currently in the witness box against whom the relevant allegation is made; the Court of Criminal Appeal confirmed a broader construction of the provision.
  • Where a prior consistent statement is admitted solely under s 108(3), limitations apply to the use the jury may make of that evidence, and specific procedural steps should be followed in managing that evidence at trial.
  • A direction on wilful blindness (that deliberately declining to make inquiry in the face of suspicious circumstances may support an inference of knowledge) did not require a specific, separately labelled direction; the substance of the direction, assessed in context, was the operative consideration.
  • Errors in directions and in the handling of prior consistent statement evidence will not automatically result in a conviction being quashed; the Court applied the no-miscarriage-of-justice principle in concluding the trial outcome was not affected.
  • In sentencing for drug importation offences, an accused's precise role need not be definitively categorised; it is sufficient that the sentencing court draws reasonable inferences from the circumstances, and a finding of an organisational role somewhere between courier and mastermind can be properly supported on that basis.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B, 235
- Evidence Act 1995 (NSW), ss 55, 66, 97(1), 100, 102, 103, 108(3), 112, 135, 137, 190(2), 192, Part 3.8
- Criminal Appeal Rules, Rule 4

Cases:
- BD (1997) 94 A Crim R 131
- Cheung v The Queen (2001) 76 ALJR 133
- Giorgianni v The Queen (1985) 156 CLR 473
- Graham v The Queen (1998) 195 CLR 606
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Kural v The Queen (1987) 162 CLR 502
- Papakosmas v The Queen (1999) 196 CLR 297
- Pereira v Director of Public Prosecutions (1989) 63 ALJR 1
- R v A.N. [2000] NSWCCA 327
- Regina v Isaacs (1997) 41 NSWLR 374
- Regina v Martin (1981) 2 NSWLR 640
- Savvas v The Queen (1995) 183 CLR 1
- The Queen v Olbrich (1999) 199 CLR 270