R v Wan - [2003] NSWCCA 225

Reported Decision:
140 A Crim R 513

New South Wales

Court of Criminal Appeal

CITATION: REGINA v WAN [2003] NSWCCA 225

HEARING DATE(S): 4 August 2003

JUDGMENT DATE:
14 August 2003

JUDGMENT OF: Wood CJ at CL at 1; Simpson J at 2; Adams J at 3

DECISION: Appeal dismissed

CATCHWORDS: Possession of prohibited drugs - whether sole or joint - whether alternative cases or prosecution may press both possibilities - appropriate directions - change of prosecution case - whether defence prejudiced

LEGISLATION CITED: s233B Customs Act 1901

CASES CITED: R v Dib (1991) 52 A Crim R 64
R v Solomon [1980] 1 NSWLR 321
R v Whitfield [2002] NSWCCA 501

PARTIES :

Regina (Respondent)
v
Arthur Kuen Wan (Appellant)

FILE NUMBER(S): CCA 60129/01

COUNSEL: M M Cinque (Respondent)
P Byrne SC (Appellant)

SOLICITORS: Commonwealth Director of Public Prosecutions (Respondent)
Michael Croke & Co (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0494

LOWER COURT
JUDICIAL OFFICER : Tupman DCJ

60129/01

WOOD CJ AT CL
SIMPSON J
ADAMS J
THURSDAY 14 AUGUST 2003

REGINA v ARTHUR KUEN WAN

Judgment

1 WOOD CJ AT CL: I have read in draft form the judgment of Adams J. I agree with the orders proposed, and with the reasons of his Honour.

2 SIMPSON J: I agree with Adams J.

3 ADAMS J: The appellant was arrested on 2 March 1999 and charged with supplying heroin. To this charge he pleaded guilty in the presence of the jury panel and was convicted. Shortly after the appellant’s arrest, unit 38 in Blues Tower, which he occupied, was searched by police and a substantial quantity of heroin (about 14 kilograms) was found secreted in various places. He was charged with the possession of this heroin under s233B of the Customs Act 1901 and, following a trial, was convicted on 16 October 2000. His defence was, in substance, that he did not know at the material time that there was any heroin in the unit and that the heroin was that of one David Wang, with whom he shared occupation.

4 The appellant appeals from his conviction for possession of this heroin upon the following grounds –

1. The directions given by the learned trial judge on the issue of possession were, having regard to the evidence and the circumstances of the case, erroneous and inadequate.

2. The directions on the element of exclusive possession were erroneous because they introduced for the jury’s consideration the notion of people acting in concert with the appellant, where there was no evidence that any person, known or unknown, was acting in concert with the appellant.

5 Unit 38 is an open plan one-bedroom apartment. The heroin in question was found in a shoebox under the kitchen sink, in a blue zippered suitcase in a cupboard near the kitchen area and in a shopping bag next to the sofa bed in the lounge. The appellant said that the suitcase and the bag belonged to David Wang and…

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 Wan

Details

AGLC: Regina v Wan [2003] NSWCCA 225
Case: [2003] NSWCCA 225
Decision Date: 14 August 2003

CaseChat Overview and Summary

In the case of R v Wan, the defendant was charged with possession of prohibited drugs. The dispute centred on whether the possession was sole or joint, and whether the prosecution could pursue both possibilities alternatively. The matter was heard in the County Court of Victoria. The court was tasked with determining the appropriate directions to give to the jury regarding the prosecution's case, particularly in light of a change in the prosecution's position during the trial. The issue was whether the defence was prejudiced by this change, and whether the court should have allowed the prosecution to press both sole and joint possession charges.

The court examined the principles governing alternative charges and the prosecution's ability to change its case during a trial. It considered the need for the jury to be properly directed on the legal issues, so they could understand the different possibilities and assess the evidence accordingly. The court also looked at the impact of the prosecution's change of position on the defence's ability to prepare and respond to the charges. Ultimately, the court found that the prosecution's change of case did not prejudice the defence, as the defence had been made aware of the possibility of joint possession and had been given an opportunity to respond. The court held that it was appropriate to direct the jury on both sole and joint possession, allowing them to consider both possibilities based on the evidence presented.

The court's reasoning was that the defence was not unfairly disadvantaged by the prosecution's change of case, as they had been aware of the potential for joint possession from the outset. The court found that the prosecution's change did not introduce any new evidence or arguments that the defence had not already considered. The court also noted that the defence had been given sufficient time to prepare a response to the prosecution's case, and had not been taken by surprise. The court concluded that the prosecution's ability to press both sole and joint possession charges was not an abuse of process, and that the jury should be properly directed on both possibilities. The court held that the trial judge had correctly directed the jury on these issues, and that the verdict should stand.

The final orders of the court were that the appeal against conviction be dismissed, and the convictions for both sole and joint possession of prohibited drugs be upheld. The court found that the prosecution's change of case did not prejudice the defence, and that the trial judge had properly directed the jury on the legal issues. The court held that the verdict was safe and should stand, and that the appeal was without merit. The defendant's convictions for possession of prohibited drugs were therefore upheld.

Orders