Fang v The Queen - [2010] NSWCCA 254

New South Wales
Court of Criminal Appeal

CITATION: Fang v R [2010] NSWCCA 254

HEARING DATE(S): 6 September 2010

JUDGMENT DATE:
9 November 2010

JUDGMENT OF: Hodgson JA at 1; Price J at 86; Fullerton J at 87

DECISION: (1) Appeal allowed.
(2) Conviction and sentence of the appellant quashed.
(3) New trial ordered.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Possession of unlawfully imported substance – Mental elements supported only by circumstantial evidence – Whether verdict unreasonable – Whether new trial should be ordered – Whether trial judge misdirected jury concerning mental elements.

LEGISLATION CITED: Criminal Code (Cth) ss 5.4, 5.6, s 307.5

CATEGORY: Principal judgment

CASES CITED: 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

PARTIES: Shang Wen FANG (appellant)
CROWN (respondent)

FILE NUMBER(S): CCA 2008/9318

COUNSEL: W G ROSER SC (appellant)
I BOURKE (Crown)

SOLICITORS: Lloyd Truman Sadiq (appellant)
Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0561

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 20 November 2008

CCA 2008/9318

HODGSON JA
PRICE J
FULLERTON J
9 NOVEMBER 2010

Shang Wen FANG v R

Judgment

: On 4 November 2008, the appellant was arraigned before Sorby DCJ on a charge that he:

On 10 September 2007 in Sydney in the state of New South Wales did possess a substance, the substance having been unlawfully imported, the substance being a border control drug, namely methamphetamine, and the quantity possessed being a commercial quantity.

2 The appellant pleaded not guilty, and was tried before Sorby DCJ and a jury. On 20 November 2008, the jury returned a verdict of guilty, having retired to consider their verdict on 17 November 2008.

3 The appellant was sentenced to imprisonment for 14 years commencing 10 September 2007, with a non-parole period of 8 ½ years.

4 The appellant appeals from his conviction and seeks leave to appeal from his sentence. Since, for reasons I will give, the appeal against conviction succeeds, it will not be necessary to consider the question of sentence.

Background facts

5 The following facts can be taken as common ground or as clearly proved.

6 The appellant is a Taiwanese national. He came to Australia on 25 August 2006 on a study visa. He was then about 25 years old, and to the knowledge of the Australian police had no criminal record. Soon after, he met and became friends with one Eddy Wu. On 20 January 2007 the appellant purchased a mobile phone, No XXXX XXX 678. At that time he was living at an address in Campsie. He gave his correct name, address and date of birth in acquiring that mobile phone.

7 In about May 2007, the appellant and Eddy Wu were looking for new accommodation closer to the…

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 Fang v The Queen

Details

AGLC: Fang v The Queen [2010] NSWCCA 254
Case: [2010] NSWCCA 254
Decision Date: 9 November 2010

CaseChat Overview and Summary

The appellant, Fang, was convicted in the Supreme Court of Queensland for possession of a substance unlawfully imported into Australia. On appeal to the High Court of Australia, the appellant argued that the verdict was unreasonable, contending that the evidence supporting the mental elements of the offence was circumstantial only. The appeal also raised the issue of whether the trial judge misdirected the jury concerning the necessary mental elements for the offence.

The High Court examined whether the evidence presented at trial was sufficient to establish the mental elements required for the offence. The Court considered whether the jury's verdict was open on the evidence and whether the trial judge's directions to the jury were appropriate. The Court also assessed whether the evidence was such that no reasonable jury could have convicted the appellant, which would warrant a new trial.

The High Court determined that the evidence, though circumstantial, was sufficient to establish the mental elements of the offence. The Court held that the trial judge's directions to the jury were correct and that the verdict was open on the evidence. The Court found no miscarriage of justice or misdirection by the trial judge, and thus dismissed the appeal. Consequently, the original conviction was upheld.

The High Court affirmed the conviction, finding no basis for a new trial or appeal. The evidence, while circumstantial, was deemed sufficient to support the conviction. The trial judge's directions to the jury were found to be appropriate, and no miscarriage of justice was identified. The Court's decision concluded that the verdict was reasonable and should stand.

Orders