Chen v The Queen
[2021] VSCA 143
•26 May 2021
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 be set aside, and verdicts of acquittal entered in respect of each charge.
In order to establish the first element of each charge against the applicant, the prosecution was required to prove that the applicant imported the border controlled drug that was the subject of that charge. Section 300.2 of the Criminal Code defines the verb ‘import’ in the following terms:
Import, in relation to a substance, means import the substance into Australia and includes:
(a) bring the substance into Australia; and
(b) deal with the substance in connection with its importation.
In the trial, the prosecution did not seek to establish that the applicant had brought the particular substance, that was the subject of each charge, into Australia. Rather, the prosecution case was that the applicant dealt with the substance in connection with its importation, in accordance with para (b) of the definition.
In summary, the prosecution alleged that the applicant was part of a Melbourne based syndicate which included her boyfriend Chee Ho Chow (‘Chow’) and Zhao, each of whom was involved in the importation of heroin into Australia. The members of the syndicate would provide various names and addresses in Melbourne to which packages, containing the drugs, could be sent from Malaysia. Upon arrival, the packages were to be collected from the consignees and be taken to a contact in Springvale, a man named Kheng Ooi (‘Ooi’), in exchange for money.
In fact, none of the five consignments, that were the subject of the charges against the applicant, were delivered. The consignment that was the subject of charge 1, and which contained 221 grams of pure heroin, was addressed to the applicant. It was intercepted by members of the Australian Border Force on 1 September 2016. The consignment that was the subject of charge 3 was addressed to a person called ‘Chen Hao’ at an address at which the applicant stayed with her boyfriend Chow. It contained 220.8 grams of pure heroin. That consignment was intercepted by Australian Border Force on 8 September 2016. The consignment, that was the subject of charge 6, was similarly addressed to a different person, but at the same address as the consignment in charge 3. It contained 236.8 grams of pure heroin. That consignment was intercepted by Australian Border Force members on 26 September 2016. The consignment, that was the subject of charge 8, was addressed to the applicant at her address. It contained 223.4 grams of pure heroin. That consignment was intercepted by Australian Border Force members on 3 October 2016. Finally, the consignment, that was the subject of charge 9, was addressed to Ooi at his Springvale address. It contained 244 grams of pure heroin. The consignment was intercepted by Australian Border Force members on 3 October 2016.
In the summary of its opening in the trial, the prosecution alleged that the applicant had dealt with the heroin that was the subject of each consignment by providing a delivery address, by being a consignee, and/or by liaising with others in relation to the particular consignment.
In her closing address, the prosecutor based her submission, that the applicant had dealt with the substances that were the subject of each of the five charges, on two specific factors. First, the prosecutor relied on the fact that the applicant had provided addresses to which the consignments were to be delivered. She submitted to the jury that the provision of a delivery address was a ‘fundamental component’ of an importation. Secondly, the prosecutor submitted that there was evidence that the applicant had been prepared to track the parcels involved in each of the importations, to receive them once they were imported, to pass them to others after she had received the parcels, or to provide information to persons higher in the syndicate about any seizures of consignments that had taken place.
In Zhao, we discussed the principles that relate to the content and meaning of the phrase ‘deal with’ in the definition of the term ‘import’ in s 300.2 of the Criminal Code, which have been expounded in the two decisions of the Court of Criminal Appeal of South Australia in R v Tranter[2] and Ribbon v The Queen.[3]
[2](2013) 116 SASR 452; [2013] SASCFC 61 (‘Tranter’).
[3](2019) 134 SASR 328; [2019] SASCFC 130 (‘Ribbon’).
In the context of the present case, two particular principles are of significance. First, at the time of the alleged dealing by the accused, the substance in question must be in existence. If the conduct alleged against the accused occurred before that time, or occurred after the substance had been seized by the members of the Australian Border Force, that conduct cannot constitute dealing with the subject substance. Secondly, in order that the conduct by an accused be held to constitute a ‘dealing’ with the substance, it must be established that the accused person either had physical possession of, or otherwise in a material respect had control of the disposition of, the substance in question.[4]
[4]Tranter (2013) 116 SASR 452, 474 [88], 475 [93]; [2013] SASCFC 61 (Peek J); Ribbon (2019) 134 SASR 328, 387 [140], 391 [153], [156]; [2019] SASCFC 130 (Peek J); Zhao [2021] VSCA 101, [13]–[15] (Kyrou and Kaye JJA).
Based on those principles, ground 1 of the application for leave to appeal is clearly made out in respect of each charge. In particular, in the case of each of the consignments that were the subject of those charges, it could not be proven that the substance, that was the subject of the charge, was in existence, at the time at which the applicant’s address, or an address related to the applicant, was provided for delivery of the heroin. Further, as discussed in Zhao, the provision of addresses for delivery of a substance alone, and without more, is insufficient to constitute possession of the substance or the necessary degree of control of the disposition of the substance, to constitute a dealing with it. In addition, the prosecution relied on conduct by the applicant, such as tracking the consignment, or communications by the applicant with the consignee in relation to the consignment, or, in the case of charge 1, directions given to the consignee DHL, which could not be proven to have occurred before the seizure of the consignment by members of the Australian Border Force.
In those circumstances, ground 1 of the proposed application for leave to appeal is clearly made out in respect of each of the charges. In essence, the evidence adduced at the trial, and relied on by the prosecution, was insufficient to establish the principal element of the offence that was the subject of those charges, namely, that the applicant had imported the substance that was the subject of the particular charge. While the evidence might have been sufficient to support a different charge, such as a conspiracy to import a border controlled substance, it was insufficient to establish the guilt of the applicant on those charges.
Further, for the reasons that follow, we are satisfied that ground 2 of the application for leave to appeal should be upheld, and that the appeal should be allowed, under that ground in respect of each of the charges.
It is clear, and has been accepted by the respondent, that the trial was not conducted in accordance with the correct construction of the phrase ‘deal with the substance’ or ‘import’ in s 300.2 of the Code as clarified by the two South Australian decisions to which we have referred, namely, Ribbon and Tranter.
As we have mentioned, the prosecution case, both as set out in the summary of its opening, and in the prosecutor’s address, was that the applicant had dealt with, and thus imported, the substances, by providing an address for the delivery of the substances, and by being prepared to track the parcels involved in the importations, to receive them when they were imported, to pass them onto others after she received the parcels, or to provide information to other persons higher in the syndicate about the consignments. In response, in his final address to the jury, counsel for the applicant (who was not counsel who appeared on this application) did not put in issue that his client had dealt with the substances for the purposes of having imported them. Counsel submitted that the only issue in the case was whether the prosecution could prove the requisite state of mind of the applicant in relation to each of the consignments.
In those circumstances, in her charge, the judge directed the jury that the first element of each charge — that the applicant had imported a substance — was not the subject of any dispute in relation to the applicant’s case. Her Honour noted the two matters on which the prosecutor had relied in respect of that element. Having done so, she directed the jury that it would have to make its decision whether it was satisfied beyond reasonable doubt that each accused had imported the substance.
Thus, at the trial counsel for the applicant did not in terms address the issue whether the actions that were attributed to the applicant were sufficient to prove that she had dealt with and thus imported the substances. As a consequence, the judge did not direct the jury as to the principles relevant to that issue. In fairness to the parties and to the trial judge, we note that the trial took place one year before the decision of the South Australian Court of Criminal Appeal in Ribbon.
It is thus clear that the trial was not conducted in accordance with the principles that were relevant to the issue as to whether the prosecution had proven, beyond reasonable doubt, that the applicant had dealt with, and thus imported, the substances that were the subject of each of the charges. In particular, the jury was not directed that in order that the particular conduct of the applicant, relied on by the prosecution, might constitute a requisite dealing with the substance, the conduct must occur after the substance had come into existence, and before it had been seized by the members of the Australian Border Force.
Further, the jury was not directed as to the precise content and ambit of the phrase ‘deal with’ in the definition of the verb ‘import’ in the Criminal Code. In particular, the jury was not directed that some of the conduct ascribed to the applicant, such as the provision by her of an address for delivery of a consignment, could not, of itself, be sufficient to constitute a necessary dealing with the substance. Further, the jury was not directed that in order to be satisfied that there was a relevant dealing with the substance by the applicant, it must be unanimous, as to at least one of the items of conduct relied on by the prosecution, as constituting a dealing.[5]
[5]Ribbon (2019) 134 SASR 328, 364–5 [77]–[80] (Peek J), 418–20 [257]–[268] (Doyle J); [2019] SASCFC 130.
For those reasons, the applicant should be granted leave to appeal, and the appeal allowed, on each ground.
In accordance with the concession correctly made by the respondent, it follows that the verdicts and convictions of the applicant on each of the five charges should be set aside, and judgments of acquittal for the offences that are the subject of the charges will be entered pursuant to s 277(1)(b) of the Criminal Procedure Act 2009.
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