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Lin v The Queen

Lin v The Queen

Case [2019] NSWCCA 171 5 August 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lin v R [2019] NSWCCA 171
Hearing dates: 17 July 2019
Decision date: 05 August 2019
Before: Leeming JA at [1];
Davies J at [80];
Hidden AJ at [81]
Decision:
1. Extend the time within which to appeal to 28 February 2019.

2. Grant leave to appeal, including leave pursuant to r 4 of the Criminal Appeal Rules.

3. Appeal allowed.

4. Quash the convictions on the charges contained on the indictment dated 20 October 2015.
5. Order that the matter be remitted to the District Court for retrial.
Catchwords:
CRIMINAL LAW – appeal – appeal against conviction – applicant found guilty of offences under Commonwealth Criminal Code of importing border controlled drugs – large quantity of methamphetamine imported into Australia by sea glued to insides of kayaks – applicant involved in obtaining possession of kayaks from freight forwarder – extended definition of import – physical elements of offences satisfied – fault elements of offences – prosecution required to establish applicant intended to import a substance, and knew or was reckless as to the substance being a border controlled drug – whether jury was misdirected – written directions distinguished fault elements – lengthy oral directions conflated the two – overall effect apt to instruct jury that sufficient to find that applicant was reckless as to all elements – primary judge in fact sentenced on that basis – proviso inapplicable – appropriate case for extension of time and grant of leave pursuant to r 4 Criminal Appeal Rules – convictions quashed and retrial ordered – Commonwealth Criminal Code, ss 5.2, 5.4, 11.1, 307.1, 307.3, 307.5

Legislation Cited:
Commonwealth Criminal Code, ss 5.2, 5.4, 5.6, 11.1, 300.2, 300.6, 307.1, 307.3, 307.5
Criminal Appeal Rules, r 4
Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth), Schedule 1

Cases Cited:
Barker v The Queen [2012] WASCA 51
El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63
Justins v R (2010) 79 NSWLR 544; [2010] NSWCCA 242
Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270
O’Grady v The Queen (2014) 252 CLR 621; [2014] HCA 38
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Onuorah v R (2009) 76 NSWLR 1; [2009] NSWCCA 238
Smith v The Queen (2017) 259 CLR 291; [2017] HCA 19
TA v R [2015] NSWCCA 151

Category: Principal judgment
Parties: Chien Wei Lin (Appellant)
Crown (Respondent)
Representation:
Counsel:

GA Bashir SC and C McGorey (Appellant)
G Wright (Respondent)

Solicitors:
Ting Legal (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2014/44034
Publication restriction: Publication restriction on Caselaw removed on 16 April 2021 following return of jury's verdict after retrial.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Before:

Lakatos SC…

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 Lin v The Queen

Details

AGLC: Lin v The Queen [2019] NSWCCA 171
Case: [2019] NSWCCA 171
Decision Date: 05 August 2019

CaseChat Overview and Summary

The appellant, Lin, was found guilty of offences under the Commonwealth Criminal Code for importing border controlled drugs, specifically a large quantity of methamphetamine imported into Australia via sea, concealed within the kayaks. The court of appeal considered the appeal against the conviction, examining whether the jury was correctly directed in law concerning the fault elements required for the offences. The central issue revolved around whether the jury was misdirected in a way that conflated the distinct fault elements, potentially leading them to believe that recklessness regarding all elements was sufficient for conviction.

The court noted that while the jury had been provided with written directions that correctly distinguished between the fault elements, the oral directions delivered by the trial judge were lengthy and ultimately conflated these elements. This conflation may have misled the jury, as they appeared to have been instructed that it was sufficient to find the appellant reckless as to all elements, which is not the correct legal standard. The primary judge, in sentencing, seemed to have applied this conflated understanding of the law, leading to a potential miscarriage of justice.

Consequently, the court determined that the error in the jury's direction was not a minor or trivial one but rather one that was likely to have influenced the jury's decision. The appeal court found that this case was appropriate for an extension of time and the grant of leave to appeal under rule 4 of the Criminal Appeal Rules. The convictions were quashed, and a retrial was ordered to ensure that the jury would receive accurate directions regarding the fault elements required for the offences.

The final orders included quashing the convictions and directing a retrial of the appellant on the charges of importing border controlled drugs. The court emphasised the importance of clear and accurate legal directions to the jury, particularly in cases involving complex criminal offences. The retrial was to be conducted with proper attention to the distinction between the different fault elements as required by the Commonwealth Criminal Code.

Orders