Lin v The Queen - [2018] VSCA 100

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0226

WENBIAO LIN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, SANTAMARIA and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 March 2018
DATE OF JUDGMENT:	20 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 100
JUDGMENT APPEALED FROM:	DPP v Lin (Unreported, County Court of Victoria, Judge Coish, 26 October 2016)

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CRIMINAL LAW – Appeal – Conviction – Applicant charged with importing a commercial quantity of a border controlled precursor (pseudoephedrine) – Whether evidence of prior uncharged importation admissible – Evidence relevant to applicant’s state of mind and to rebut defence that he accepted package for work colleague – Ivanoff v The Queen [2015] VSCA 116.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci with Mr P J Smallwood	Lethbridges Barristers & Solicitors
For the Respondent	Mr K T Armstrong	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

WEINBERG JA
SANTAMARIA JA
KYROU JA:

On 26 May 2016, the applicant was convicted, in the County Court at Melbourne, of one charge of having imported, from China, a commercial quantity of a border controlled precursor, pseudoephedrine. On 26 October 2016, he was sentenced to eight years’ imprisonment with a non-parole period of five years and six months. He sought leave to appeal against both conviction and sentence.

The applicant initially relied on the following ground in support of his application for leave to appeal against conviction:

A substantial miscarriage of justice was caused by the learned trial judge in permitting the prosecution to lead evidence which was unfairly prejudicial to the applicant.

The evidence said to have been ‘unfairly prejudicial’ was that of an earlier importation of pseudoephedrine from China (hereafter ‘importation 1’). The trial judge had permitted the prosecution to lead that evidence in reliance on a principle said to have been explained in Ivanoff v The Queen.[1]
[1][2015] VSCA 116 (‘Ivanoff’).

On 26 April 2017, Ashley JA, sitting as a single judge, referred the application for leave to appeal against conviction to this Court. In doing so, his Honour observed that that there was a real question as to whether the trial judge had acted correctly in applying Ivanoff as the basis for admitting the evidence of importation 1.

His Honour refused the application for the leave to appeal against sentence. The applicant has not sought to challenge that refusal.

Reformulated ground of appeal

In the applicant’s amended written case dated 26 February 2018, the sole ground of appeal put forward in support of the application for leave to appeal against conviction was reformulated as follows:

The trial judge erred by ruling that evidence of the previous importation was admissible, and the erroneous admission of that evidence has resulted in a substantial miscarriage of justice.

CIRCUMSTANCES OF THE CHARGED OFFENDING

The applicant owned and operated a landscaping business. From late June to August 2012 he, along with various employees, performed landscaping work at a property located at 24 Shannon Street,…

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: Wenbiao Lin v The Queen [2018] VSCA 100
Case: [2018] VSCA 100
Decision Date: 20 April 2018

CaseChat Overview and Summary

Lin was charged with importing a commercial quantity of a border controlled precursor, specifically pseudoephedrine. The case was heard in the Victorian Court of Appeal. The central issue in the appeal was whether evidence of prior uncharged importation of pseudoephedrine should have been admitted as it was argued to be relevant to the applicant’s state of mind and to rebut the defence that he had accepted the package for a work colleague. This contention drew on the principles articulated in Ivanoff v The Queen [2015] VSCA 116.

The court considered whether the evidence of the prior importation was relevant to the applicant’s state of mind and if it could be used to rebut the defence that he had accepted the package for a work colleague. The court examined whether the evidence was necessary to counter the defence that the applicant had acted solely for his colleague’s benefit, which would have negated the mens rea required for the importation offence. The court also assessed the relevance of the evidence under the principles of admissibility and whether it met the threshold for relevance under the common law.

In reaching its decision, the court concluded that the evidence of prior uncharged importation was indeed relevant to the applicant’s state of mind and was admissible to rebut the defence that he accepted the package for a work colleague. The court found that the evidence was necessary to counter the defence and to establish the applicant’s intent, aligning with the precedent set in Ivanoff v The Queen [2015] VSCA 116. Consequently, the appeal was dismissed, affirming the conviction.

The final orders of the court were to dismiss the appeal and uphold the conviction of the applicant. The evidence of the prior uncharged importation was deemed relevant and admissible, and thus the conviction was maintained.

Orders