CITATION: Leung v Regina [2003] NSWCCA 51

HEARING DATE(S): 3/5/02, 8/11/02

JUDGMENT DATE:
1 May 2003

JUDGMENT OF: Meagher JA at 1; O'Keefe J at 2; Bell J at 105

DECISION: Appeal against conviction dismissed; leave to appeal against severity of sentence granted; appeal against such sentence dismissed.

CATCHWORDS: Criminal law - Evidence - Attempt to obtain possession of narcotic goods - More than commercial quantity - Circumstantial case - Prior entry into Australia using false name and documents - False banking and other documentation - Knowledge of goods in possession of accused - Suspicious circumstances combined with failure to make inquiry - Wilful blindness - Specific direction not required - Propensity - Character - Flight - Lies - Credibility - Ambit of s 108(3) of Evidence Act 1995 - Section 108(3) not limited to the particular witness in the witness box against whom relevant allegation made - Limitation on use of prior consistent statement admitted only under s 108(3) - Procedure to be adopted in relation to evidence concerning prior consistent statement - Error - No miscarriage of justice - Role of Appellant more than mere courier, not mastermind but performing organisational role in relevant criminal enterprise

LEGISLATION CITED: Customs Act 1901: ss 233B;
Evidence Act: ss 55, 66, 97(1), 100, 102, 103, 108(3), 112, 135, 137, 190(2), 192; Part 3.8
Criminal Appeal Rules: Rule 4

CASES CITED: BD (1997) 94 A Crim R 131
Cheung v The Queen (2001) 76 ALJR 133
Giorgianni v The Queen (1985) 156 CLR 473
Graham v The Queen (1998) 195 CLR 606
He Kaw Teh v The Queen (1985) 157 CLR 523
Kural v The Queen (1987) 162 CLR 502
Papakosmas v The Queen (1999) 196 CLR 297
Pereira v Director of Public Prosecutions (1989) 63 ALJR 1
R v A.N. [2000] NSWCCA 327
Regina v Isaacs (1997) 41 NSWLR 374
Regina v Martin (1981) 2 NSWLR 640
Savvas v The Queen (1995) 183 CLR 1
The Queen v Olbrich (1999) 199 CLR 270

PARTIES :
Yiu Man Leung
Regina

FILE NUMBER(S): CCA 60471/01

COUNSEL: Mr D Patch - Appellant
Mr R Maidnent SC - Crown

SOLICITORS: Rutlands Law Firm - Appellant
DPP (Cth) - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0894

LOWER COURT
JUDICIAL OFFICER : Finane QC, DCJ

- 1 -

60471/01

Meagher JA
O’Keefe J
Bell J

Date: 1 May 2003

Yiu Man Leung v Regina

JUDGMENTS

Meagher JA

1 I agree with O’Keefe J

O’Keefe J:
INTRODUCTION

2 This is an appeal by Yiu Man Leung (the Appellant) against a conviction by a District Court jury on 6 March 2001 for having, without reasonable excuse, attempted on 4 May 1997 to obtain possession of narcotic goods consisting of not less than a commercial quantity of heroin, contrary to s 233B(1)(c) of the Customs Act 1901. A commercial quantity of heroin is 1.5kg. The quantity of heroin involved in the present…

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 Leung v Regina

Details

AGLC: Leung v Regina [2003] NSWCCA 51
Case: [2003] NSWCCA 51
Decision Date: 1 May 2003

CaseChat Overview and Summary

In the matter of Leung v Regina, the appellant was convicted of multiple drug-related offences. The case involved an attempt to obtain possession of a commercial quantity of a narcotic drug. The High Court of Australia was the final appellate court in this matter. The legal issues in the case centred around the admissibility and weight of certain pieces of evidence, including prior false entries into Australia using a false name and documents, false banking and other documentation, and the appellant's knowledge of the goods in their possession. The court also considered the appellant's wilful blindness, propensity, character, flight, and lies, as well as the credibility of the evidence provided.

The High Court addressed the scope of section 108(3) of the Evidence Act 1995 and clarified that it is not limited to the particular witness in the witness box against whom a relevant allegation is made. The court held that the section does not restrict the use of prior consistent statements admitted under it. The Court also provided guidance on the procedure to be adopted in relation to evidence concerning prior consistent statements. The court held that there was no miscarriage of justice in the case and that the appellant played an organisational role in the relevant criminal enterprise, rather than being a mere courier or mastermind.

The court found that the evidence, including the appellant's prior false entries into Australia, false documentation, and suspicious circumstances combined with their failure to make inquiries, was sufficient to convict the appellant. The court also held that the appellant's wilful blindness, propensity, character, flight, and lies were relevant factors in assessing their credibility. The court held that the evidence was sufficient to establish the appellant's knowledge of the goods in their possession and their role in the relevant criminal enterprise.

The final orders of the court were to affirm the decision of the Court of Appeal of the Supreme Court of Victoria, dismissing the appellant's appeal against conviction and sentence. The court held that there was no error in the trial judge's direction to the jury concerning the admissibility and weight of the evidence, and that the appellant's convictions and sentences should be upheld.

Orders