AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
7
Court of Criminal Appeal 21 August 2007

Ka Chung Fung v R

[2007] NSWCCA 250

Also reported as (2007) 174 A Crim R 169
Drugs
CONVICTION APPEAL RULE 4 AND APPLICATION OF PROVISO DIRECTION ON ACCUSED'S GOOD CHARACTER NO FIXED FORMULA NO SUBSTANTIAL MISCARRIAGE OF JUSTICE.

Citation: Ka Chung Fung v R [2007] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 21 August 2007
Judges: Spigelman CJ, Kirby J, Latham J

Background

The appellant was convicted in the District Court on two counts of knowingly taking part in the supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985. The charges arose from alleged involvement in the orchestration and supervision of heroin supply in Sydney on 21 August 2003, involving a commercial quantity and a large commercial quantity of heroin respectively.

The Crown's case rested on surveillance evidence, telephone intercepts, and the testimony of a co-offender who had cooperated with authorities. The appellant denied any knowledge of drug supply, maintaining that his conversations and associations with the co-offenders were innocent and that references in phone calls to "portions" and "pieces" related to money from gambling rather than heroin.

Two grounds of appeal were raised: first, that the trial judge failed to direct the jury that the Crown had to prove beyond reasonable doubt that the appellant knew or believed the relevant quantity of drug was being supplied; and second, that the trial judge's direction on the appellant's good character was inadequate. Defence counsel had not raised either complaint at trial, so leave was required on both grounds.

  • Whether the omission of a direction on the knowledge element of the offence amounted to an error requiring a new trial, or whether the proviso under s 6(1) of the Criminal Appeal Act 1912 applied to prevent that outcome
  • Whether the trial judge's good character direction was materially deficient, having used the phrase "less likely" to commit an offence rather than directing the jury in terms of the "unlikelihood of guilt"
  • Whether leave should be granted to rely on grounds not raised at trial on either issue

Decision

On the first ground, the Court of Criminal Appeal accepted that the omitted direction was required as a matter of law. However, the Court applied the proviso under s 6(1) of the Criminal Appeal Act 1912, which allows a conviction to stand despite a trial irregularity where no substantial miscarriage of justice has occurred. The Court noted that the trial was conducted on a narrow basis: the defence did not dispute the meaning of code words used by co-offenders or the fact that heroin was being supplied. The sole factual contest was whether the appellant had any knowledge of the enterprise at all. Given that confinement, the omission of the direction did not produce a substantial miscarriage of justice.

On the second ground, the appellant argued that directing the jury that good character made it "less likely" the accused committed the offence fell short of the formulation endorsed in earlier authority, which framed the proposition in terms of the "unlikelihood of guilt." The Court rejected this argument. Citing the Court of Criminal Appeal's decision in R v Telfer, Latham J confirmed that there is no fixed formula required for a good character direction. Her Honour's direction at trial fell within an acceptable range, drawing attention to the improbability of a person of good character committing an offence relative to a person who does not have that attribute. The Court found no distinction of substance between the two formulations.

Leave to rely on the second ground was refused, and the Court was not persuaded that either the omitted direction or the terms of the good character direction had caused any substantial miscarriage of justice.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the proviso under s 6(1) of the Criminal Appeal Act 1912 may apply where a direction on an essential element of an offence is omitted, provided the actual factual contest at trial was so narrow that the omission caused no substantial miscarriage of justice.
  • Where defence counsel fails to request a jury direction at trial and raises no objection to directions given, leave is required to rely on those matters on appeal, reflecting a high threshold for intervention.
  • No fixed formula is required for a good character direction: the Court of Criminal Appeal reaffirmed that a direction is sufficient where it draws the jury's attention to the improbability of a person of good character committing the offence in question, without needing to replicate specific language from earlier cases.
  • A direction telling the jury that good character made it "less likely" the accused committed the offence was held not to differ materially from formulations expressed in terms of the "unlikelihood of guilt."
  • In dismissing the appeal, the Court applied Rule 4, treating the second ground as having no substance rather than simply declining to exercise discretion favourably.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- R v Stalder [1981] 2 NSWLR 9
- R v Telfer (2004) 142 A Crim R 132; [2004] NSWCCA 27
- R v Robinson [1999] NSWCCA 172
- R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
- R v Gillard, CCA unreported, 15 July 1991
- Wilde v The Queen (1988) 164 CLR 365
- Krakouer v The Queen (1998) 194 CLR 202
- Weiss v The Queen (2005) 223 ALR 662; [2005] HCA 81
- R v Cao (2006) 65 NSWLR 552
- R v Lau [1998] 105 A Crim R 167
- R v Micalizzi [2004] NSWCCA 406
- R v Moussa [2001] NSWCCA 427
- R v Gulliford (2004) 148 A Crim R 558
- R v Tripodina & Morabito (1988) 35 A Crim R 183
- Holland v R (1993) 117 ALR 193