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Le, Chung Thi v The Queen

Le, Chung Thi v The Queen

Case [1997] FCA 1286 24 October 1997

Conspiracy

Breach of Contract

Unconscionable Conduct

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FEDERAL COURT OF AUSTRALIA

CRIMINAL LAW - conspiracy - where alleged co-conspirator acquitted - where no relevantly separate evidence against convicted conspirator - whether verdict inconsistent - sentence - factors to be taken into account - quality and quantity of prohibited substance - role of convicted person in importation of prohibited substance - effect of “truth in sentencing” legislation - appeal and new trial - fresh evidence - whether significant possibility that jury, acting reasonably, would have acquitted if the fresh evidence had been before it - particular grounds - whether verdict unsafe and unsatisfactory - whether verdict against the weight of evidence

Crime Act 1900 (ACT): s 429(1)
Customs Act 1901 (Cth): s 233B(1)(c)
Drugs of Dependence Act 1989 (ACT): s 164(3)(c)

Dharmasena v The King (1951) AC 1, applied
Gallagher v The Queen (1968) 160 CLR 392, applied
M v The Queen (1994) 181 CLR 487, applied
Mickelberg v The Queen (1989) 167 CLR 259, applied
R v Thao Ngoc Luong (District Court of NSW, Judge Graham, 13 April 1997), applied
R v Maclay (1990) 19 NSWLR 112, applied
R v Suen (1986) 25 A Crim R 393, explained
Sheppard v The Queen (1990) 170 CLR 573, applied
The Queen v Darby (1981-82) 148 CLR 668, applied

CHUNG THI LE v THE QUEEN
A1 of 1997

FOSTER, von DOUSSA AND MADGWICK JJ
CANBERRA

24 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
A1 of 1997

BETWEEN:

CHUNG THI LE
APPLICANT

AND:

THE QUEEN
RESPONDENT

JUDGE(S):

FOSTER, von DOUSSA AND MADGWICK JJ

DATE OF ORDER:

24 OCTOBER 1997

PLACE:

CANBERRA

THE COURT ORDERS THAT:

The appeal be allowed in part.

The conviction for conspiracy be set aside and in lieu thereof a verdict of acquittal be entered.

3,.The conviction for possession of a trafficable quantity of heroin for purpose of supply be confirmed.

The appeal against sentence be allowed in part.

The non-parole period be varied from a period of 6 years to a period of 4½ years.

The sentence be otherwise confirmed.

The time already served to count in respect of the sentence and non-parole period.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
AG 1 of 1997

BETWEEN:

CHUNG THI LE
APPLICANT

AND:

THE QUEEN
RESPONDENT

JUDGE(S):

FOSTER, von DOUSSA AND MADGWICK JJ

DATE:

24 OCTOBER 1997

PLACE:

CANBERRA

REASONS FOR JUDGMENT

THE COURT: This is an appeal brought by the appellant, Chung Thi Le, against both her conviction and sentence in respect of two charges. The first charge was one of conspiracy with another person, her ex-husband Dien Van Le (“Dien”). Because of the nature of submissions made to us in the appeal, it is necessary that we set out in full the charge upon which the appellant and Dien were arraigned before the jury, there having been some alteration, after argument, in the wording of the original indictment. The charge to which both the appellant and Dien pleaded not guilty…

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 Le, Chung Thi v The Queen

Details

AGLC: Le, Chung Thi v The Queen [1997] FCA 1286
Case: [1997] FCA 1286
Decision Date: 24 OCTOBER 1997

CaseChat Overview and Summary

In the Federal Court of Australia, Chung Thi Le appeals against her conviction and sentence in relation to two charges. The first charge was conspiracy with her ex-husband, Dien Van Le, to possess a trafficable quantity of heroin for the purpose of sale or supply. The second charge was possession of a trafficable quantity of heroin for the purpose of sale or supply. The appellant was acquitted on the conspiracy charge, while being convicted on the possession charge. The appeal against the conviction for possession was dismissed, but the appeal against the conspiracy conviction was allowed. The court found that there was no relevantly separate evidence against the appellant that could justify her conviction of conspiring with Dien. The appeal against sentence was partially allowed, with the non-parole period being reduced from six years to four and a half years. The sentence was otherwise confirmed.

The court found that the jury had ample evidence before it upon which it could reach its decision that it was satisfied beyond reasonable doubt of the guilt of the appellant in respect of the possession charge. The jury's verdict was not unsafe or unsatisfactory, nor against the weight of the evidence. The appeal against the conviction for conspiracy was allowed because there was no relevantly separate evidence against the appellant which could justify her conviction of conspiring with Dien. The situation was such that the same evidence in respect of the same charge had produced the conviction of one and the acquittal of the other. The jury's acquittal of Dien operated in favour of the appellant on the question of whether there had been a conspiracy between them.

The application to call fresh evidence was refused. The court was not satisfied that there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.

In relation to the sentence, the court found that the amount of heroin involved was large, though regrettably, by present-day Australian standards, not in a category that one would call very large. The appellant offered no explanation of her role. The court could draw the inference beyond reasonable doubt that she participated with a view to substantial financial gain. The case was obviously a very serious one, but the facts were consistent with her being not more than a trusted instrument of others. The court varied the non-parole period from a period of six years to a period of four and a half years. The sentence was otherwise confirmed. Time served was to count.

Orders