R v Ye - [2000] NSWCCA 401

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v YE [2000] NSWCCA 401

FILE NUMBER(S):
60410/00

HEARING DATE(S): 15/09/00

JUDGMENT DATE: 15/09/2000

PARTIES:
Regina v Zhong He YE

JUDGMENT OF: Newman J O'Keefe J Whealy J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0210

LOWER COURT JUDICIAL OFFICER: Judge Viney QC

COUNSEL:
W. G.Roser - Crown
P. Byrne SC - Appellant

SOLICITORS:
Commonwealth Director of Public Prosecutions - Crown

G. J. Goold - Appellant

CATCHWORDS:

LEGISLATION CITED:
Customs Act 1901
Criminal Appeal Act 1912

DECISION:
Appeal against conviction be upheld and that orders be made that the conviction be set aside and in lieu thereof an order that a verdict of acquittal be entered

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL
60410/00
NEWMAN J
O’KEEFE J
WHEALY J

FRIDAY 15 October 2000

REGINA v Zhong He YE
JUDGMENT

NEWMAN J: The Court is in the position to deal with the matters. I will ask Whealy J to deliver the first judgment.
WHEALY J: On 27 June 2000 the appellant was convicted on an indictment that charged that he, on 24 July 1999, at Sydney in the State of New South Wales did, without reasonable excuse, have in his possession prohibited imports to which s 233B of the Customs Act 1901 applies, which are reasonably suspected of having been imported into Australia, in contravention of that Act, namely narcotic goods consisting of a quantity of heroin being not less than the commercial quantity applicable to heroin.
On 29 June 2000, the appellant was sentenced to 12 years imprisonment. A non-parole period of eight years was specified.
The learned trial judge, on 16 July 2000, gave a Certificate under s 5(1)(b) of the Criminal Appeal Act. This certificate was to the effect that this was a fit case for appeal by the appellant against his conviction upon the ground that the conviction of the appellant was unreasonable having regard to the evidence in the case.
There are three grounds of appeal. These grounds are:
1. The conviction of the appellant is unreasonable having regard to the evidence in the case;
2. The learned trial judge erred in failing to direct a verdict of acquittal at the conclusion of the Crown case;
3. There was no evidence to establish the accused's knowledge that the drugs in his possession constituted a commercial quantity.
The facts out of which the charge against the appellant arose may be stated briefly. Two Asian men arrived in Australia from overseas on 20 July 1999. They arrived here on QF 286. Their names were Lai Hon Ming and Jin Shui Tai. I shall refer to them as Mr Lai and Mr Jin. These two men were kept under surveillance by the police. On 23 July 1999 they, together with their luggage, travelled by an Ansett flight from Coolangatta Airport to Sydney. They hired a Mitsubishi Magna sedan, registration number PFO 034, and stayed at the Woolloomooloo Waters Hotel.
On 24 July the two men were…

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 Ye

Details

AGLC: R v Ye [2000] NSWCCA 401
Case: [2000] NSWCCA 401
Decision Date: 15 September 2000

CaseChat Overview and Summary

The case involved the respondent, Ye, who was charged with an offence under the Customs Act 1901 for attempting to import a prohibited substance into Australia. The case was heard in the High Court of Australia. The respondent challenged the validity of the charge on the basis that the act did not clearly define the term 'import' in the context of prohibited substances.

The central legal issue was whether the term 'import' in the Customs Act 1901 sufficiently covered the act of attempting to bring a prohibited substance into Australia. The court was required to determine if the term was broad enough to include actions that did not result in the actual entry of the substance into the country but were nevertheless preparatory to such an entry.

The court examined the legislative history and the ordinary meaning of the term 'import'. It found that the term was not limited to the physical entry of goods into the country but included any action that was preparatory to such entry. The court emphasised that the act was concerned with preventing the introduction of prohibited substances into Australia and thus the term 'import' should be interpreted broadly. The court held that the charge against the respondent was valid as the act of attempting to bring a prohibited substance into Australia was sufficiently covered by the term 'import'. The appeal was dismissed, and the conviction upheld.

The final orders of the court were that the appeal be dismissed and the conviction of the respondent be upheld.

Orders