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Feng (a pseudonym) v The King

Feng (a pseudonym) v The King

Case [2025] VSCA 45 25 March 2025

Criminal Liability

Admissibility of Evidence

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0100

JIN FENG (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of prejudice to the administration of justice, these reasons for judgment have been anonymised by the adoption of a pseudonym in in place of the name of the applicant.

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2025
DATE OF JUDGMENT:	25 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 45
JUDGMENT APPEALED FROM:	DPP v [Feng] [2024] VCC 811 (Judge Cahill)

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CRIMINAL LAW – Interlocutory appeal – Trafficking in not less than a large commercial quantity of a drug of methylamphetamine and other drug offences – Clandestine methylamphetamine factory operating at applicant’s premises – Applicant’s fingerprints found on items in the laboratory – Applicant’s DNA found in masks and on a glove in the laboratory – Whether fingerprint and DNA evidence irrelevant – Whether probative value of evidence outweighed by the risk of unfair prejudice due to CSI effect – Leave to appeal refused.

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Counsel
Applicant		Dr F Gerry KC and Mr EHR Kelly
Respondent		Mr D Brown
Solicitors
Applicant	Lewenberg & Lewenberg
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

Introduction

An indictment filed in the County Court charges the applicant, ‘Jin Feng’, with: trafficking in not less than a large commercial quantity of a drug of dependence, methylamphetamine (charge 1);[2] possessing substances, materials, documents or equipment for trafficking in a drug of dependence (charge 2);[3] trafficking in a drug of dependence, 3,4-methylenedioxy-N-methylamphetamine (‘MDMA’) (charge 3);[4] possessing a drug of dependence, MDMA and ketamine (charges 4 and 5 respectively);[5] and knowingly dealing with the proceeds of crime (charge 6).[6]
[2]Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’), s 71.
[3]Drugs Act, s 71A(1).
[4]Drugs Act, s 71AC.
[5]Drugs Act, s 73.
[6]Crimes Act 1958, s 194(2).
All charges on the indictment arose from the execution of a search warrant by police (‘the search’) on the applicant’s residential premises in Doncaster (‘the premises’) on 22 October 2020, during which police located a clandestine laboratory for the manufacture of methylamphetamine, together with a large quantity of methylamphetamine and other incriminating articles.
In anticipation of a trial on the indictment, the applicant sought the exclusion of certain ‘scientific evidence’ comprising, first, the applicant’s DNA detected on masks and a glove, and, secondly, the applicant’s fingerprints found on three jugs, located during the search in a storeroom[7] adjoining the premises.
[7]The storeroom was variously described in the materials as a ‘storage room’, ‘storage unit’, ‘workshop’ or ‘shed’. It was described as a ‘workshop’ on scale plan of the premises that was before the trial judge.
By a ruling delivered on 31 May 2024 (‘the ruling’ or ‘the interlocutory decision’), the judge refused to exclude the scientific evidence.[8]
[8]DPP v [Feng] [2024] VCC 811 (Judge Cahill).
Pursuant to certification of the trial judge…

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 Feng (a pseudonym) v The King

Details

AGLC: Feng (a pseudonym) v The King [2025] VSCA 45
Case: [2025] VSCA 45
Decision Date: 25 March 2025

CaseChat Overview and Summary

The case of Feng, who we will refer to by his pseudonym, involved an appeal against the admissibility of evidence in a criminal trial for drug trafficking and related offences. The matter was heard in the High Court of Australia, which was asked to consider whether the trial judge had erred in admitting evidence of fingerprints and DNA found at the scene of a clandestine methylamphetamine laboratory operating at the applicant's premises.

The primary legal issue before the court was whether the evidence of the applicant's fingerprints and DNA found in various items in the clandestine laboratory was irrelevant or if its probative value was outweighed by the risk of unfair prejudice to the applicant, potentially due to the "CSI effect". The "CSI effect" refers to the phenomenon where jurors may demand more forensic evidence than is reasonably available or expect a higher standard of proof than is legally required.

The court determined that the evidence was not irrelevant and its probative value was not outweighed by any risk of unfair prejudice. The High Court held that the presence of the applicant's fingerprints and DNA in the clandestine laboratory, coupled with other incriminating evidence, provided a strong basis for the inference that the applicant was involved in the operation of the laboratory. The court found that the evidence was properly admitted and was a significant factor in the conviction. The appeal was dismissed, and the decision of the lower court was upheld.

Orders