R v Cao

Case [2006] NSWCCA 89 30 March 2006

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Reported Decision:
(2006) 65 NSWLR 553
198 FLR 200
172 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: Chi Thanh Cao v R [2006] NSWCCA 89
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22/02/2006

JUDGMENT DATE:
30 March 2006

JUDGMENT OF: Spigelman CJ at 1; Barr J at 2; Howie J at 3

DECISION: The appeal is dismissed.

CATCHWORDS: Criminal Law - Summing up - directions on intent to possess narcotic goods - whether inadequate.

LEGISLATION CITED: Customs Act 1901 - s 233B
Evidence Act 1995 - ss 89
Criminal Appeal Rules - rule 4
Criminal Code (Cth) - ss 3.1, 4.1(1), 4.1(2), 5.2, 5.6(1), 11.1
Drug Misuse and Trafficking Act 1985
Drugs, Poisons and Controlled Substances Act (Vic) 1981 - ss 71, 71AA

CASES CITED: R v Reeves (1992) 29 NSWLR 109
R v Skaf (2004) 60 NSWLR 86
R v Saengsai-Or (2004) 61 NSWLR 135
Kural v The Queen (1987) 162 CLR 502
Saad v The Queen (1987) 61 ALJR 243
Pereira v DPP (1988) 63 ALJR 1
R v Veraga [2001] NSWCCA 24
R v Muradian [2002] NSWCCA 371
R v Lau (1998) 105 A Crim R 167
R v Ruiz-Avila [2003] NSWCCA 264
DPP Reference No. 1 of 2004; R v Nguyen (2005) 154 A Crim R 360
R v Greatorex (1995) 83 A Crim R 416
R v Karam (1998) 105 A Crim R 167
Holland v The Queen (1993) 117 ALR 193
Krakouer v The Queen (1998) 194 CLR 202
R v Guliford (2004) 148 A Crim R 558
Weiss v The Queen (2005) 80 ALJR 444

PARTIES: Chi Thanh Cao v Regina

FILE NUMBER(S): CCA 2005/1944

COUNSEL: W. Abraham - Crown
S. Odgers SC - Applicant

SOLICITORS: Commonwealth DPP - Crown
Randle Lawyers - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0024

LOWER COURT JUDICIAL OFFICER: Keleman DCJ

2005/1944

SPIGELMAN CJ
BARR J
HOWIE J
THURSDAY 30 MARCH 2006

Chi Thanh CAO v R

Judgment

1 SPIGELMAN CJ: I agree with Howie J.

2 BARR J: I agree with Howie J.

3 HOWIE J: The appellant stood trial before a jury in the District Court on a charge that he, on or about 1 April 2003, did attempt to possess prohibited imports to which s 233B of the Customs Act applies, namely narcotics goods consisting of a quantity of heroin, being not less than the commercial quantity applicable to the drug. On 19 October 2004 the jury convicted the appellant of that offence. On 17 December 2004 Judge Keleman (the Judge) sentenced the appellant to imprisonment for 14 years and one month with a non-parole period of eight years and one month. The appellant appeals against his conviction but there is no application for leave to appeal against sentence.

4 By reason of the nature of the grounds of appeal relied upon by the appellant, it is unnecessary to relate the facts in…

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 R v Cao

Details

AGLC: R v Cao [2006] NSWCCA 89
Case: [2006] NSWCCA 89
Decision Date: 30 March 2006

CaseChat Overview and Summary

The case of R v Cao involved the defendant, Cao, who was charged with possession of a commercial quantity of a prohibited drug. The dispute arose in the context of a drug trafficking operation, and the case was heard in the County Court of Victoria. The central issue before the court was whether the trial judge's summing up and directions to the jury regarding the intent to possess the narcotic goods were adequate. Specifically, the court needed to determine if the judge correctly instructed the jury on the mens rea required for the charge of possession of a commercial quantity of a drug.

The court was tasked with assessing whether the trial judge's explanation was sufficient to guide the jury in understanding the elements of the offence, particularly the intent to possess the drugs for commercial purposes. The defence argued that the summing up was inadequate as it did not clearly delineate the distinction between possession for personal use and possession for the purpose of trafficking. The prosecution, on the other hand, contended that the summing up was adequate and appropriately reflected the legal principles governing the charge.

In delivering the judgment, the court held that the summing up provided by the trial judge was indeed inadequate. The judge's explanation did not sufficiently clarify the critical distinction between possession for personal use and possession for commercial purposes. This omission could potentially mislead the jury and result in an incorrect application of the law. Consequently, the court concluded that the summing up was insufficient and could lead to an unfair trial. The court allowed the appeal and quashed the conviction.

Orders