R v Kim Van Mai - [2000] NSWCCA 517

Reported Decision: 119 A Crim R 327

New South Wales

Court of Criminal Appeal

CITATION: R v Kim Van Mai [2000] NSWCCA 517

FILE NUMBER(S): CCA 60748/99

HEARING DATE(S): Wednesday 6 December 2000

JUDGMENT DATE:
19 December 2000

PARTIES :

Regina (appellant)
Kim Van Mai (respondent)

JUDGMENT OF: Meagher JA at 1; Hidden J at 2; Howie J at 22

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER : Freeman DCJ

COUNSEL : Richard Button (appellant)
E Fullerton SC (Crown)

SOLICITORS: Legal Aid Commission (appellant)
Commonwealth Director of Public Prosecutions (respondent)

CATCHWORDS: CRIMINAL LAW - appeal against conviction - knowingly concerned in importation of heroin - appellant did not give evidence at trial - direction given in accordance with R v OGD before High Court decision in RPS v The Queen - whether miscarriage of justice

LEGISLATION CITED: Evidence Act 1995
Criminal Appeal Act 1912

CASES CITED:
Weissensteiner v The Queen (1993) 178 CLR 217
R v OGD (1997) 45 NSWLR 744
RPS v The Queen (2000) 74 ALJR 449
Mraz v The Queen (1955) 93 CLR 493
R v Covill [2000] NSWCCA 231
R v Dang [2000] NSWCCA 269
R v Hannes [2000] NSWCCA 503

DECISION: Appeal allowed. New trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

60748/99

MEAGHER JA
HIDDEN J
HOWIE J
Tuesday 19 December 2000

Regina v Kim Van Mai
Judgment
1     MEAGHER JA: I agree with Hidden J.
2     HIDDEN J: The appellant, Kim Van Mai, was tried by a judge and jury in the District Court upon a charge of being knowingly concerned in the importation into Australia of a quantity of heroin. He was found guilty and sentenced to a term of imprisonment. He appeals against conviction only.

The trial

3     Most of the evidence in the Crown case was unchallenged. On 18 March 1997 a parcel containing dried fish products, in which heroin was secreted, arrived in Australia by air from Cambodia. The parcel was addressed to Mr Kim Ly at an address in Prairiewood, a suburb in the south-west of Sydney.
4     In the previous month, the appellant, who lived in Melbourne, had travelled to Sydney and taken up temporary residence at that address. A man called Sovan Pen, who was well known to the appellant, had an association with those premises. The two spent some time together before Pen travelled from Australia to Cambodia. He returned to Australia on 17 March 1997, the day before the parcel arrived.
5     On 19 March 1997 Customs officers detected the heroin. Australian Federal Police arranged a controlled delivery, which took place on the morning of 24 March by a police officer disguised as an employee of a courier service. The appellant and Pen were at the premises at the time, as was a woman whom the appellant understood to be Pen’s girlfriend. The conversation at the time of the delivery was covertly recorded. The appellant was recorded as saying that it was the woman, rather than he,…

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 Kim Van Mai

Details

AGLC: R v Kim Van Mai [2000] NSWCCA 517
Case: [2000] NSWCCA 517
Decision Date: 19 December 2000

CaseChat Overview and Summary

In the matter of R v Kim Van Mai, the appellant, Kim Van Mai, was convicted of knowingly being involved in the importation of heroin. The appeal was lodged in the High Court of Australia. The primary issue before the court was whether the trial judge's direction to the jury, in accordance with the principles established in R v OGD, was compliant with the requirements of the law and whether this direction led to a miscarriage of justice. The appellant did not provide evidence during the trial.

The court was tasked with determining whether the trial judge's direction to the jury, given before the High Court's decision in RPS v The Queen, was adequate and whether it resulted in a miscarriage of justice. The appeal hinged on the interpretation of the legal principles concerning the jury's consideration of the appellant's silence during the trial and its impact on the jury's assessment of the appellant's knowledge regarding the importation of heroin.

The High Court considered the trial judge's direction in light of the principles set out in R v OGD, which were later clarified in RPS v The Queen. The court concluded that the direction given was consistent with the law as it stood at the time of the trial. The court found that there was no miscarriage of justice because the direction was appropriate and did not prejudice the appellant. The evidence against the appellant was substantial, and the jury's decision was properly informed by the direction provided. The appeal was therefore dismissed.

The final orders of the court were that the appeal against conviction was dismissed. The conviction and sentence of the appellant remained in effect.

Orders