R v Yang - [2016] WASC 410

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- YANG [2016] WASC 410

CORAM: FIANNACA J

HEARD: 12 SEPTEMBER, 11-12 OCTOBER & 17 NOVEMBER 2016

DELIVERED : 19 DECEMBER 2016

FILE NO/S: INS 147 of 2015

BETWEEN: THE QUEEN
Prosecution
AND
DONGGIL YANG
Accused

Catchwords:

Trial of the issues - Criminal Code (Cth) s 307.1(1) - Whether offender intended to import border controlled drug when he travelled to Australia - Whether offender was reckless as to the imported substance being a border controlled drug when he travelled to Australia

Legislation:

Criminal Code (Cth), s 4.1, s 5.4, s 5.6, s 6.2, s 307.1(1), s 307.1(2), s 307.1(3)
Criminal Code Regulations 2002 (Cth)

Result:

Findings of fact made
The offender intended to import a substance and was reckless as to whether the substance was a border controlled drug when he travelled to and entered Australia

Category: B

Representation:

Counsel:

Prosecution : Ms K A Gregory
Accused: Mr S Lee

Solicitors:

Prosecution : Director of Public Prosecutions (Cth)
Accused: Spencer Reyner Law Office Pty Ltd

Cases referred to in judgment:

Afford v The Queen [2016] VSCA 56; (2016) 308 FLR 1
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Hann v Commonwealth Director of Public Prosecutions [2004] SASC 86; (2004) 88 SASR 99
Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
Smith v The Queen [2016] NSWCCA 93; (2016) 309 FLR 258

Table of Contents

Background and identification of the issues
Procedural history
Statutory framework
Legal principles concerning the trial of the issues
The facts stated by the prosecutor
Messages between the offender and others
Translations of the Korean messages
Structure of the balance of these reasons
The offender's background
The offender's credibility - a general observation
How the offender became involved in the enterprise

(i)       Introduction to Bello's enterprise by Jeong
(ii)      Contact from Bello
(iii)     Messages between offender and Jeong expressing concerns about the enterprise

The use of laughing symbols
Messages on 23 July 2014
The offender's motive for becoming involved in the enterprise
Messages on 11 September 2014
Conclusion as to offender's state of mind from the messages prior to the first trip
The offender's first trip for Bello

(i)       Communications with Bello and the arrangements to travel to Brazil
(ii)      The trip to Brazil
(iii)     The exchange with Meng on 12 October 2014
(iv)     Instructions from Bello concerning delivery of the luggage and departure
(v)      Receiving the luggage in Brazil
(vi)     Whether the offender made admissions to Ms Martin that he was worried he was carrying something dangerous
(v)      The offender's discovery of wrapped items in the luggage in Brazil
(vi)     Communication with Bello at the airport in Brazil
(vii)    The delivery of the luggage in Thailand
(viii)      Communication with Jeong while the offender was in Thailand
(ix)     Conclusions in respect of the offender's state of mind on his trip to Brazil 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 Yang

Details

AGLC: R v Yang [2016] WASC 410
Case: [2016] WASC 410
Decision Date: 19 DECEMBER 2016

CaseChat Overview and Summary

The case of R v Yang was heard in the Federal Court of Australia, where the accused, Yang, was charged with importing a border controlled drug in contravention of section 307.1(1) of the Criminal Code. The dispute centred on whether Yang intended to import the drug when he travelled to Australia and, alternatively, whether he was reckless as to the substance being a border controlled drug. The prosecution argued that Yang was aware of the nature of the substance he was importing, while Yang claimed he had no knowledge that the substance was illegal. The case was a critical examination of the mental state of the accused at the time of the offence.

The primary legal issues that the court had to resolve were whether Yang had the requisite intent to import a border controlled drug, and if not, whether he was reckless regarding the importation of such a substance. The court had to determine whether the prosecution had proved beyond reasonable doubt that Yang either intended to import the drug or was reckless as to its nature. This involved interpreting the statutory language of section 307.1(1) and assessing the evidence presented regarding Yang’s knowledge and state of mind. The court also needed to consider the applicable legal principles concerning recklessness and intention in the context of drug importation offences.

In reaching its decision, the court examined the evidence presented by both parties, including witness testimonies and expert opinions. It assessed the credibility of the witnesses and the weight of the evidence. The court concluded that the prosecution had not established beyond reasonable doubt that Yang intended to import a border controlled drug. However, it found that Yang was reckless as to whether the substance he imported was a border controlled drug. The court held that recklessness on the part of Yang was sufficient to meet the statutory requirement for the offence under section 307.1(1). Consequently, the court found Yang guilty of the offence.

The court ordered that Yang be sentenced on a future date, allowing for the preparation of a comprehensive sentencing report. The judge emphasised the seriousness of the offence and the need for appropriate punishment that would also serve as a deterrent. The court did not deliver a sentence in this judgment but set a timeline for sentencing to ensure all relevant factors were considered.

Orders