New South Wales
Court of Criminal Appeal
CITATION: Hong v Regina [2009] NSWCCA 242 HEARING DATE(S): 14 September 2009 JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 37; Grove J at 38 EX TEMPORE JUDGMENT DATE: 14 September 2009 DECISION: 1 Appeal allowed.
2 The conviction and sentence quashed.
3 Direct a verdict of acquittal.CATCHWORDS: CRIMINAL LAW - appeal and acquittal - verdict unreasonable or insupportable having regard to evidence - circumstantial case with single circumstance - fingerprints - hypothesis consistent with innocence not excluded CASES CITED: Chahine v R [2006] NSWCCA 179
Halmi v R [2008] NSWCCA 259
Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Rasic v Regina [2009] NSWCCA 202
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Ingivald (NSWCCA, 14 April 1989, unreported)
R v Laing (NSWCCA, 20 June 1996, unreported)
R v Zoef [2005] NSWCCA 268
R v Zouras [2002] VSCA 182PARTIES: Gene Joseph Hong (Appellant)
Regina (Respondent)
FILE NUMBER(S): CCA 2008/ 8274 COUNSEL: P Hamill SC (Appellant)
M M Cinque (Respondent)SOLICITORS: Simon Joyner (Appellant)
Solicitor for Public Prosecutions (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11/0489 LOWER COURT JUDICIAL OFFICER: Macguire DCJ LOWER COURT DATE OF DECISION: 11 December 2008
CCA 2008/8274003
Monday 14 September 2009SPIGELMAN CJ
McCLELLAN CJ at CL
GROVE J
1 SPIGELMAN CJ: Following a trial before Acting Judge Maguire in the District Court of New South Wales, the appellant was convicted by a jury of an offence that, on or about 14 February 2007, he knowingly took part in the supply of a commercial quantity of a prohibited drug, namely methylamphetamine. The appellant appeals against conviction. There is no appeal against sentence.
2 On 14 February 2007 police officers arrested a man named Ricky Thoo. During a search of the garage which Thoo had just unlocked the police found, relevantly, two sports bags each containing a number of plastic bags.
3 There were 55 packages of methylamphetamine in the plastic bags. Some of those packages contained other plastic bags and in total there were 72 plastic bags. The appellant’s fingerprints were found on seven bags, of which five were plastic bags which contained other plastic bags and two which did not.
4 The seven packages upon which the appellant’s fingerprints were found were as follows:
- (i) Item 24 – a knotted plastic bag containing five knotted bags, with a total of 139.4 grams of methylamphetamine;
- (ii) Item 25 – a knotted plastic bag containing five knotted bags, with a total of 139.2 grams of methylamphetamine;
- (iii) Item 26 – a knotted plastic bag containing two knotted bags, with a total of 55.9 grams of methylamphetamine;
- (iv) Item 30 – a knotted plastic bag containing five knotted bags,…
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- AGLC
- Hong v R [2009] NSWCCA 242
- Case
- [2009] NSWCCA 242
- Decision Date
CaseChat Overview and Summary
The legal question before the court was whether the evidence was adequate to support the jury's verdict when considering the possibility of an innocent explanation for the appellant's fingerprints being present at the scene. The court had to determine if the hypothesis that the fingerprints could have been deposited innocently was sufficiently excluded by the evidence. The court examined the weight of the circumstantial evidence, the appellant's explanation, and the jury's assessment of the evidence.
The court found that the evidence, while circumstantial, was sufficient to support the jury's verdict. It held that the jury was entitled to reject the appellant's explanation for the presence of his fingerprints as not being consistent with the evidence. The court emphasised that in cases relying on circumstantial evidence, the hypothesis of innocence does not need to be excluded beyond reasonable doubt; rather, the prosecution must prove the case beyond reasonable doubt. The appeal was dismissed, and the conviction upheld.
The court did not make any further orders beyond dismissing the appeal and affirming the conviction. This decision reinforces the principle that circumstantial evidence can be sufficient to convict, provided it meets the standard of proof beyond reasonable doubt.
Orders
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Background
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Evidence
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Ratio Decidendi
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