Le v The Queen - [2016] VSCA 100

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0240

THI QUYEN LE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG AP and REDLICH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2016
DATE OF JUDGMENT:	10 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 100
JUDGMENT APPEALED FROM:	DPP v Le (Unreported, County Court of Victoria, Judge Coish, 6 November 2015)

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CRIMINAL LAW – Conspiracy to import a commercial quantity of a border controlled drug contrary to Criminal Code 1995 (Cth) – Whether Crown must prove intention to import commercial quantity – Special liability provisions of the Code as to proof of the quantity of the drug – Absolute liability – Sections 11.5(1), 307.(1), 11.5(7A) Criminal Code 1995 (Cth) – R v LK; R v RK (2010) 241 CLR 177; Franze v The Queen [2014] VSCA 352; Luong v DPP (2013) 279 FLR 453; Papadimitrou v The Queen (2011) 214 A Crim R 50, considered.

CRIMINAL LAW – Defence counsel informing trial judge Azzopardi direction not required – Azzopardi v The Queen (2001) 205 CLR 50 – Whether trial judge still obliged to give direction to avoid a substantial miscarriage of justice – Jury Directions Act2013 s 15 – Whether discernible objective forensic advantage in not seeking direction – Knowles (a pseudonym) v The Queen [2015] VSCA 141, applied – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC	Defteros Lawyers
For the Crown	Mr L Crowley	Mr M Pedley, Solicitor for Public Prosecutions (Cth)

WEINBERG AP

REDLICH JA:

Following a jury trial, the applicant was found guilty on one charge of conspiracy to import a commercial quantity of a border controlled drug, namely heroin, contrary to ss 11.5(1) and 307.(1) of the Criminal Code 1995 (Cth) (the ‘Code’).

The applicant now seeks leave to appeal against her conviction. Originally the appeal was founded on three separate grounds which raised the common complaint that the trial judge failed to instruct the jury that the fault element for the offence required an intention to import a commercial quantity of heroin and, in fact, directed the jury that it was not necessary for the prosecution to establish that the applicant intended that the quantity of the drug to be imported was a commercial quantity. At the oral hearing of the appeal, these grounds, though not abandoned, were for good reason not pressed. For the reasons that follow, the fault element which the prosecution must establish does not include an intention as to the quantity of the drug to be imported.

At the hearing of the appeal, counsel for the applicant sought leave, which was granted, to rely on an additional, fourth ground. The complaint related to the failure of the trial judge to give an Azzopardi direction in relation to the accused’s failure to give evidence at trial. The trial judge had asked counsel for the accused at trial whether such a direction was requested.…

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 v The Queen

Details

AGLC: Thi Quyen Le v The Queen [2016] VSCA 100
Case: [2016] VSCA 100
Decision Date: 10 May 2016

CaseChat Overview and Summary

The respondents, Le and another, were convicted for conspiracy to import a commercial quantity of a border-controlled drug. The case reached the High Court of Australia. The primary legal issue was whether the Crown was required to prove that the respondents had the intention to import a commercial quantity of the drug, or whether the special liability provisions of the Criminal Code 1995 (Cth) applied, making them absolutely liable regardless of their intent. This involved interpreting the provisions of the Code, specifically sections 11.5(1), 307(1), and 11.5(7A), and considering precedents such as R v LK; R v RK, Franze v The Queen, Luong v DPP, and Papadimitrou v The Queen.

The court held that the Crown was not required to prove the intention to import a commercial quantity, as the special liability provisions made the respondents absolutely liable. The court examined the language and purpose of the relevant sections of the Criminal Code, concluding that the provisions did not necessitate proof of the accused’s intent. The court also considered the trial judge’s decision not to give an Azzopardi direction, despite the defence counsel not requesting it. The court found that once the defence counsel informed the judge that no such direction was sought, the trial judge was not obliged to give one, even if it might have avoided a substantial miscarriage of justice. The court applied the principles from Knowles v The Queen, finding no discernible objective forensic advantage in seeking such a direction.

The High Court ultimately found that the trial judge's decision did not result in a substantial miscarriage of justice, and therefore upheld the respondents' convictions. The court refused leave to appeal, affirming the lower court’s decision.

Orders