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Jin Wu (a pseudonym)[1] v The Queen

Jin Wu (a pseudonym)[1] v The Queen

Case [2020] VSCA 94 22 April 2020

Interlocutory Orders

Admissibility of Evidence

Limitation Periods

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0141

JIN WU (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicants.

S APCR 2019 0142

TU PHAN (a pseudonym)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST and EMERTON JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 April 2020
DATE OF JUDGMENT:	22 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 94
JUDGMENT APPEALED FROM:	R v [Phan] (Ruling No 1) (Unreported, County Court of Victoria, 4 June 2019); R v [Phan] (Ruling No 2) (Unreported, County Court of Victoria, 8 July 2019)

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CRIMINAL LAW – Interlocutory appeal – Evidentiary ruling – Conspiracy to import commercial quantity of border controlled drug – Evidence obtained by undercover operatives acting under major controlled operation authorities – Evidence obtained either in contravention of Australian law or as consequence thereof – Whether desirability of admitting evidence outweighed undesirability of admitting evidence – No error by trial judge – Leave to appeal refused – Crimes Act 1914 (Cth) pt 1AB, Evidence Act 2008 s 138.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr P Morrissey SC with Mr G Nikolovski	Melasecca, Kelly & Zayler
For the Respondent	Mr L Crowley QC with Mr D Holding	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

T FORREST JA
EMERTON JA
CROUCHER AJA:

Introduction

The applicants are charged with two counts of conspiracy to import a commercial quantity of a border controlled drug, contrary to ss 11.5(1) and 307(1) of the Criminal Code Act 1995 (Cth) (‘Code’). The evidence supporting these counts was largely obtained by undercover operatives (‘UCOs’), said to be acting under two major controlled operation authorities (‘MCOAs’) granted under pt 1AB of the Crimes Act 1914 (Cth) (‘Crimes Act’).

In pre-trial argument, the applicants contended that this evidence was obtained in contravention of an Australian law, or in consequence of such a contravention, and thus s 138(1) of the Evidence Act 2008 (Vic) (‘Evidence Act’) was engaged. The judge ruled that the evidence was obtained either in contravention of an Australian law or as a consequence thereof,[2] however, the desirability of admitting the evidence outweighed the undesirability of same.[3] Thus her Honour ruled that the evidence obtained by the UCOs may be led in the trial.
[2]R v [Phan] (Ruling No 1) (Unreported, County Court of Victoria, 4 June 2019) (‘Ruling No 1’).
[3]R v [Phan] (Ruling No 2) (Unreported, County Court of Victoria, 8 July 2019) (‘Ruling No 2’). The evidence gathered by the UCOs under the first MCOA was held to be obtained in contravention of an Australian law. The evidence acquired under the second MCOA was held to be obtained as a consequence of such a contravention.

Her Honour certified under s 295(3) of the Evidence Act that the evidence, if ruled inadmissible, would eliminate or…

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 Jin Wu (a pseudonym)[1] v The Queen

Details

AGLC: Jin Wu (a pseudonym)[1] v The Queen [2020] VSCA 94
Case: [2020] VSCA 94
Decision Date: 22 April 2020

CaseChat Overview and Summary

The court heard an interlocutory appeal by a defendant, referred to as Jin Wu, who was facing charges related to a conspiracy to import a commercial quantity of a border controlled drug. The appellant challenged the admissibility of evidence obtained by undercover operatives acting under major controlled operation authorities, arguing that the evidence was either obtained in contravention of Australian law or as a consequence of such contravention. The appeal was heard by the High Court of Australia, which had to determine whether the trial judge erred in admitting the contested evidence.

The primary legal issue before the court was whether the desirability of admitting the evidence outweighed its undesirability, considering the manner in which it was obtained. The court had to balance the need to prevent serious crime against the potential for undermining the rule of law and the integrity of the legal process. The appellant argued that the evidence should be excluded due to the unlawful methods used to obtain it, while the Crown maintained that the evidence was crucial to proving the conspiracy and that its probative value outweighed any prejudicial effect.

The High Court found no error in the trial judge's decision to admit the contested evidence. The court held that the trial judge had appropriately weighed the desirability of admitting the evidence against its undesirability, taking into account relevant factors such as the seriousness of the offence, the nature of the evidence, and the circumstances in which it was obtained. The court concluded that the trial judge had exercised their discretion correctly and that there was no basis for the appellant to appeal the decision. Consequently, leave to appeal was refused.

The court's decision affirmed the trial judge's ruling and upheld the admissibility of the evidence obtained through the major controlled operation. The appellant's interlocutory appeal was dismissed, and the proceedings against him continued as per the original trial judge's determination.

Orders