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Court of Criminal Appeal 14 December 2005

Anna Zhang v R

[2005] NSWCCA 437

Also reported as (2005) 158 A Crim R 504
Drugs
EVIDENCE COINCIDENCE EVIDENCE ATTEMPTED IMPORTATION OF NARCOTICS POSSESSION OF NARCOTICS CONSIDERATION OF ‘RELATED EVENTS’ EVIDENCE

Citation: R v Anna Zhang [2005] NSWCCA 437
Court: New South Wales Court of Criminal Appeal
Date: 14 December 2005
Judges: Basten JA; Simpson J; Buddin J

Background

The appellant was convicted in the District Court on two charges under the Customs Act 1901 (Cth): attempting to import a large quantity of crystal methylamphetamine, and possessing a quantity of the same drug. She ran a food importation business through which, Customs officers discovered, narcotics had been concealed in a consignment from China. Separately, narcotics were found in a cupboard in the bedroom of her apartment.

The appellant's defence at trial was the same on both counts: that an associate, Mr Tu (tried separately), had acted without her knowledge. On the importation charge, she said Mr Tu had used her business to bring in the drugs. On the possession charge, she said she had agreed to hold a bag for Mr Tu, unaware of its contents.

At trial, the judge admitted the evidence from each charge as "coincidence evidence" under s 98 of the Evidence Act 1995 (NSW), allowing the jury to use evidence relevant to one count when considering the other. The appellant challenged that ruling on appeal, and also argued that the trial judge had undermined the criminal standard of proof during his summing up.

  • Whether the trial judge correctly admitted evidence of the attempted importation as coincidence evidence in relation to the possession count, and vice versa, under s 98 of the Evidence Act 1995 (NSW)
  • Whether the related "events" required by s 98 were properly identified
  • Whether the evidence carried "significant probative value" as required under s 98(1) and s 101(2)
  • Whether the trial judge's use of the phrase "it was likely that she knew" in his summing up undermined the standard of proof beyond reasonable doubt
  • Whether any identified errors occasioned a substantial miscarriage of justice
  • Whether the sentences imposed were unduly severe or failed to reflect adequate parity with the sentence given to Mr Tu

Decision

On coincidence evidence (majority: Simpson J, Buddin J agreeing)

Simpson J (with Buddin J agreeing) held that the appeal on the coincidence evidence ground should fail, though the reasoning traversed complex territory. Her Honour observed that a properly drafted s 98 notice must identify the two or more related events, the person whose conduct or state of mind is in issue, and whether the evidence is tendered to prove an act or a state of mind. The related events, properly characterised, were that on the same date a large quantity of crystal methylamphetamine of similar purity and packaging arrived in cargo consigned to the appellant, and a comparable quantity was found in her bedroom wardrobe.

Her Honour noted that, strictly speaking, the evidence was not tendered primarily as coincidence evidence. Each item of evidence was independently admissible in relation to the charge to which it directly related. The prosecution's use of the evidence from one count to strengthen the other was a secondary purpose. On that basis, the trial judge's reasoning, though somewhat compressed, addressed the correct questions and did not miscarry. Even if there were technical deficiencies in the approach to s 98, no substantial miscarriage of justice resulted.

On coincidence evidence (dissenting: Basten JA)

Basten JA dissented, concluding that the two categories of evidence were not "related events" within the meaning of s 98. His Honour reasoned that while knowing possession of narcotics in the wardrobe might support an inference of involvement in the importation, the reverse reasoning did not hold. If, as the appellant maintained, Mr Tu was the importer, it was not coincidental that he would have narcotics in his possession or that he would pass a parcel to the appellant for safekeeping. The dissent would have found the coincidence evidence reasoning flawed, though this view did not carry the appeal.

On the standard of proof

The Court rejected the argument that the phrase "it was likely that she knew" in the trial judge's summing up undermined the beyond reasonable doubt standard. Reading the summing up as a whole, the isolated phrase did not displace or contradict the correct direction on standard of proof, and no substantial miscarriage of justice was established on this ground.

On sentence

The Court granted leave to appeal against sentence but dismissed the appeals. Mr Tu received a head sentence approximately 25% longer and a non-parole period more than 20% longer than the appellant's, which the Court considered adequately reflected the distinctions between their roles and prior records. The appellant's personal circumstances, including her first offence, first time in custody, family situation, and gambling problem, were weighed but regarded as carrying little weight given the serious nature and scale of the offending.

Orders Made

  • Appeal against convictions dismissed
  • Leave granted to appeal against sentences
  • Appeals against sentences dismissed

Key Takeaways

  • Under s 98 of the Evidence Act 1995 (NSW), a proper coincidence evidence notice must identify the related events with precision, specify whose conduct or state of mind is in issue, and state whether the evidence is directed to proving an act or a state of mind.
  • Where evidence is independently admissible in a joint trial of multiple counts, the prosecution's secondary use of that evidence to strengthen a separate count does not necessarily engage the coincidence evidence framework as the primary basis for admissibility.
  • The task of a trial judge assessing coincidence evidence requires an evaluative and predictive judgment: first, whether the evidence can rationally affect a fact in issue; and second, whether the jury would be likely to assign the evidence significant probative value.
  • A single phrase in a summing up that refers to probability ("it was likely that she knew") will not automatically vitiate an otherwise correct direction on the beyond reasonable doubt standard; the summing up must be read as a whole.
  • In dismissing the parity challenge on sentence, the Court confirmed that a longer sentence imposed on a co-offender with a greater role, larger drug quantity, and prior criminal record can adequately account for the distinctions between co-accused, even without further adjustment for the appellant's personal circumstances.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), ss 29(1), 29(3)
- Customs Act 1901 (Cth), s 233B(1)(c), (ca)
- Evidence Act 1995 (NSW), ss 95, 97, 98(1), 101(2), 136

Cases
- Bartho v The Queen (1978) 52 ALJR 520
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Ellis v The Queen [2004] HCA Trans 488
- He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523
- House v The King [1936] HCA 40; 55 CLR 499
- KRM v The Queen [2001] HCA 11; 206 CLR 221
- Kural v The Queen [1987] HCA 16; 162 CLR 502
- McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- Pereira v Director of Public Prosecutions [1988] HCA 57; 63 ALJR 1
- R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
- R v Fletcher [2005] NSWCCA 338
- R v Lockyer (1996) 89 A Crim R 457
- R v Matthews; R v Williams [2004] NSWCCA 259
- R v Nassif [2004] NSWCCA 433
- Saad v The Queen [1987] HCA 14; 61 ALJR 243