Fan & Anor v The Queen, Chung v The Queen

These matters concerned appeals against convictions for conspiracy to import a commercial quantity of heroin. The applicants, Fan and Chung, were convicted in the District Court of New South Wales. The appeals were heard by Gaudron J in chambers.

The primary legal issue before the Court was whether the trial judge had erred in admitting certain evidence, specifically evidence of conversations between the applicants and a third party, Mr. Chan, which were recorded by police. The applicants argued that this evidence was inadmissible hearsay and that its admission prejudiced their defence.

Gaudron J considered the principles of hearsay evidence and its exceptions. Her Honour found that the recorded conversations were not being adduced to prove the truth of the statements made by Mr. Chan, but rather to demonstrate the context of the alleged conspiracy and the applicants' participation in it. Therefore, the evidence was not hearsay in the strict sense and was admissible. The Court applied the principle that evidence is admissible if it is relevant to a fact in issue, even if it contains statements that would otherwise be inadmissible hearsay, provided it is not tendered to prove the truth of those statements.

The appeals were dismissed.