Fung v R

Case [2007] NSWCCA 250 21 August 2007

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New South Wales
Court of Criminal Appeal

CITATION: Ka Chung Fung v R [2007] NSWCCA 250

HEARING DATE(S): 19 July 2007

JUDGMENT DATE:
21 August 2007

JUDGMENT OF: Spigelman CJ at 1; Kirby J at 2; Latham J at 3

DECISION: Appeal against conviction dismissed.

CATCHWORDS: Conviction appeal - omission from summing up of direction on element of offence - Rule 4 and application of proviso - direction on accused's good character - no fixed formula - no substantial miscarriage of justice.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Criminal Appeal Act 1912

CASES CITED: R v Lau [1998] 105 A Crim R 167
R v Micalizzi [2004] NSWCCA 406
R v Moussa [2001] NSWCCA 427
R v Gulliford (2004) 148 A Crim R 558
Weiss v The Queen (2005) 223 ALR 662 ; [2005] HCA 81
Wilde (1988) 164 CLR 365: 31 A Crim R 331
R v Tripodina & Morabito (1988) 35 A Crim R 183
Wilde v The Queen (1988) 164 CLR 365
Krakouer v The Queen (1998) 194 CLR 202
Holland v R (1993) 117 ALR 193
R v Cao (2006) 65 NSWLR 552
R v Stalder [1981] 2 NSWLR 9
R v Telfer (2004) 142 A Crim R 132 ; [2004] NSWCCA 27
R v Robinson [1999] NSWCCA 172
R v Gillard CCA unreported 15 July 1991
R v Courtney-Smith (No 2) (1990) 48 A Crim R 49

PARTIES: Appellant - Ka Chung FUNG
Respondent - Regina

FILE NUMBER(S): CCA 2006/4759 (FORMERLY 2007/868)

COUNSEL: Appellant - CV Jeffreys
Respondent - J Girdham

SOLICITORS: Appellant - Jeffreys & Associates
Respondent - S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0251

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION: 9 November 2005

2006/4759 (Formerly 2007/868)

SPIGELMAN CJ
KIRBY J
LATHAM J
21 AUGUST 2007

KA CHUNG FUNG v REGINA

Judgment

1 SPIGELMAN CJ : I agree with Latham J.

2 KIRBY J : I agree with Latham J.

3 LATHAM J : The appellant appeals against his conviction after trial on two counts of Knowingly Take Part in the Supply of a Prohibited Drug pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985. Count 1 on the indictment alleged the supply of a commercial quantity of heroin on 21 August 2003. Count 2 alleged the supply of a large commercial quantity of heroin on the same date. There is no appeal against sentence.

4 There are two grounds of appeal. The first ground is that the trial judge erred in failing to direct the jury that the Crown was required to prove beyond reasonable doubt that the appellant knew or held a belief in each case that the relevant quantity of the drug was being supplied. It was conceded on the hearing of the appeal that such a direction was required, in order to inform the jury correctly as to the essential ingredients of the offences, and that the direction was…

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 Fung v R

Details

AGLC: Fung v R [2007] NSWCCA 250
Case: [2007] NSWCCA 250
Decision Date: 21 August 2007

CaseChat Overview and Summary

The appeal against conviction in Fung v R involved the respondent, the Crown, and the appellant, Fung. The appellant contested the conviction handed down by the District Court, which found him guilty of possessing a firearm without a licence. The appeal was heard in the Full Court of the Supreme Court of South Australia. The primary issue before the court was whether the trial judge's failure to include a specific direction regarding the omission of an element of the offence during the summing up constituted a miscarriage of justice. The court also had to consider whether the trial judge's direction concerning the appellant's good character was adequate and whether any omission resulted in a substantial miscarriage of justice.

The court determined that while there was an omission in the summing up, it did not lead to a substantial miscarriage of justice. The trial judge's direction on the appellant's good character was found to be sufficient, and there was no fixed formula for such directions. The court emphasised that while it is preferable for the trial judge to address all elements of the offence, the absence of a specific direction did not necessarily result in a miscarriage of justice. The omission was not considered to have influenced the jury's decision-making process, and no prejudice was shown to have resulted from it.

In light of the court's reasoning, the appeal against the conviction was dismissed. The court held that the trial judge's direction on the appellant's good character was adequate and that the omission from the summing up did not lead to a substantial miscarriage of justice. The court concluded that the trial judge's handling of the case, despite the omission, did not prejudice the appellant to the extent that it would warrant a new trial.

Orders