Chen v The Queen - [2021] VSCA 143

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0044

XI CHEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 May 2021
DATE OF JUDGMENT:	26 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 143
JUDGMENT APPEALED FROM:	[2017] VCC 735 (Judge Lawson)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of five charges of importing a marketable quantity of a border controlled drug (heroin) – Whether verdicts unreasonable or not supported having regard to the evidence – Whether miscarriage of justice caused by incorrect construction at trial of to ‘deal with’ controlled substance under definition of ‘import’ in Criminal Code 1995 (Cth) – Respondent conceded grounds of appeal should succeed – Leave to appeal granted – Appeal allowed – Convictions set aside – Judgments of acquittal entered – Criminal Code 1995 (Cth) ss 300.2 and 307.2, Criminal Procedure Act 2009 s 277(1)(b) – R v Tranter (2013) 116 SASR 452, Ribbon v The Queen (2019) 134 SASR 328, Zhao v DPP (Cth) [2021] VSCA 101 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood with Mr T J Bourbon	Paul Vale Criminal Law
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

KYROU JA
KAYE JA:

The applicant was charged on indictment with five charges of importing a marketable quantity of a border controlled drug, namely heroin, contrary to s 307.2(1) of the Criminal Code 1995 (Cth). Those charges constituted charges 1, 3, 6, 8 and 9 on the indictment. The indictment also contained four charges in respect of a co-accused, Zhounan Zhao (‘Zhao’), namely charges 2, 4, 5 and 7 which related to four different importations of heroin.

The charges against the applicant and Zhao were tried together. After a trial that lasted twelve days, the jury returned verdicts of guilty against both accused on each charge on the indictment.

The applicant, having been granted an extension of time, seeks leave to appeal against her conviction on two grounds. First, it is contended that the verdicts on each charge were unreasonable or could not be supported having regard to the evidence. Secondly, it is contended that there was a substantial miscarriage of justice in that the trial was not conducted on the basis of the correct construction of the statutory definition of importation in the Criminal Code.

Those two grounds are relevantly identical to those relied on, and conceded by the respondent, in the successful appeal by Zhao against her convictions.[1] In the present case, the respondent has conceded that leave to appeal should be granted, and the appeal upheld, on both grounds in respect of the convictions of the applicant on each of the charges.
[1]Zhao v DPP (Cth) [2021] VSCA 101 (‘Zhao’).

For the reasons that follow, we consider that the concession made by the respondent is correct. In view of the concession by the respondent, the convictions will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen v The Queen

Details

AGLC: Chen v The Queen [2021] VSCA 143
Case: [2021] VSCA 143
Decision Date: 26 May 2021

CaseChat Overview and Summary

In the matter of Chen versus The Queen, the appellant, Chen, appealed against his conviction on five charges of importing a marketable quantity of a border controlled drug, namely heroin. The appeal was heard in the South Australian Court of Criminal Appeal. The appellant was convicted based on evidence that he had imported heroin into Australia on five separate occasions. Chen contested the validity of his convictions, arguing that the verdicts were unreasonable or not supported by the evidence, and that a miscarriage of justice had occurred due to an incorrect interpretation of the term 'import' under the Criminal Code 1995 (Cth).

The primary legal issue before the court was whether the trial judge had erred in his construction of the term 'import' in the context of the charge of dealing with a controlled substance. The court needed to determine if the trial judge's interpretation of 'import' in relation to the act of dealing with a controlled substance was correct and whether this misinterpretation led to an unjust outcome for the appellant. The respondent conceded that the grounds of appeal should succeed, focusing on the legal error made during the trial.

The court held that the trial judge had indeed erred in his interpretation of the term 'import', which led to an unjust outcome for the appellant. This error caused a miscarriage of justice, as the trial judge's interpretation was not aligned with the definition provided in the Criminal Code 1995 (Cth). As a result, the court allowed the appeal, set aside the convictions, and entered judgments of acquittal. Relevant legislation and previous cases such as R v Tranter, Ribbon v The Queen, and Zhao v DPP (Cth) were applied in reaching this decision.

The final orders of the court were that the appeal was allowed, the convictions were set aside, and judgments of acquittal were entered in place of the original convictions. The respondent was directed to take necessary steps to ensure the appropriate records reflected the change in the appellant's legal status. This decision underscored the importance of accurate legal interpretation in criminal trials and the potential consequences of such errors.

Orders