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Court of Criminal Appeal 9 November 2010

Fang v R

[2010] NSWCCA 254

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER VERDICT UNREASONABLE WHETHER NEW TRIAL SHOULD BE ORDERED

Citation: Fang v R [2010] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 9 November 2010
Judge(s): Hodgson JA; Price J; Fullerton J

Background

The appellant, a Taiwanese national studying in Sydney, was charged with possessing a commercial quantity of methamphetamine that had been unlawfully imported into Australia, contrary to the Criminal Code (Cth). The drugs were concealed in 16 boxes shipped from Vancouver, Canada, and delivered to an apartment the appellant shared in Wollstonecraft on 10 September 2007.

The Crown's case was built entirely on circumstantial evidence. The appellant's mobile phone number appeared on shipping documents, he made phone calls to the shipping company, he sent emails using his own address in connection with the shipment, and he paid quarantine and storage fees for the delivery. The prosecution argued that these facts, taken together, established that the appellant knew drugs were concealed in the boxes.

At trial in the District Court before Sorby DCJ, the jury returned a guilty verdict. The appellant was sentenced to 14 years' imprisonment with a non-parole period of 8.5 years. He appealed against both conviction and sentence.

  • Whether the guilty verdict was unreasonable or unsupported by the evidence, given that the mental elements of the offence rested entirely on circumstantial evidence
  • Whether the trial judge misdirected the jury on the mental elements required for the offence under the Criminal Code (Cth), particularly in respect of recklessness
  • Whether a new trial should be ordered if the conviction was quashed

Decision

The Court of Criminal Appeal allowed the appeal, with all three judges agreeing in the reasons given by Hodgson JA. The central finding was that the trial judge had misdirected the jury on the mental elements required for the offence.

The offence under s 307.5 of the Criminal Code (Cth) required the Crown to prove that the appellant knew, or was reckless as to whether, the substance was a border control drug and had been unlawfully imported. Under s 5.4 of the Code, recklessness requires awareness of a substantial risk that a circumstance exists, and that it is unjustifiable to take that risk. Hodgson JA found that the trial judge's directions did not adequately explain recklessness in these terms, and in particular did not direct the jury that they needed to be satisfied the appellant was aware of a substantial risk that the boxes contained drugs.

On the unreasonable verdict ground, the Court declined to enter an acquittal. While the misdirection was established, the Court accepted the Crown's concession that, on a retrial with correct directions, a jury properly instructed could still convict. Accordingly, the appropriate remedy was a new trial rather than an outright acquittal.

Several other grounds of appeal, including complaints about directions on alternative innocent inferences and the standard of proof, were rejected. The Court found that the trial judge's direction on innocent inferences, properly read, correctly told the jury that if an innocent hypothesis was not excluded beyond reasonable doubt, the Crown had failed to prove its case.

Orders Made

  • Appeal allowed
  • Conviction and sentence of the appellant quashed
  • New trial ordered

Key Takeaways

  • An offence of possessing an unlawfully imported border control drug under s 307.5 of the Criminal Code (Cth) requires the jury to be directed accurately on recklessness, including that the accused must have been aware of a substantial risk that the relevant circumstances existed.
  • Where a trial judge fails to adequately explain the mental element of recklessness to a jury, a conviction based on that misdirection cannot stand.
  • Quashing a conviction does not automatically lead to an acquittal. Where the Crown concedes the evidence could still support a conviction on a properly directed retrial, ordering a new trial is the appropriate remedy.
  • A direction on circumstantial evidence that tells the jury they cannot prefer a guilty inference over an innocent one unless the innocent hypothesis is excluded beyond reasonable doubt was found, in this case, to be a correct statement of the law.
  • Appellate courts will assess each alleged misdirection individually. Several of the appellant's grounds, including complaints about the trial judge's directions on entitlement to acquit and the relevance of direct evidence, were dismissed as either misstating the trial judge's actual words or raising no appealable error.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth) ss 5.4, 5.6, 307.5

Cases:
- Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- R v Ye [2000] NSWCCA 401; (2000) 116 A Crim R 347
- Rosenfeld v R [2009] NSWCCA 74