R v Ye

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 followed by police on various trips in and around Sydney on that day. At some stage they met up with an unknown Asian male who drove the car out to Glebe and back. Mr Lai and Mr Jin picked up the car at the World Square car park at 2.50pm and drove it back to the Woolloomooloo Waters Hotel. They were seen taking two dark coloured trolley bags into the hotel. They drove into the city and the car was parked in Castlereagh Street at about 4.33pm. They then walked to Kent Street, stood about for a while and the police lost sight of them.
Mr Lai was then observed in Castlereagh Street around 5pm walking up to Goulburn Street and back. He was alone at the time. He went to the boot of the Magna and he took out a trolley suitcase and wheeled it around to Campbell Street.
Mr Lee Newton was at the time a detective sergeant constable with the New South Wales Police Force. His evidence was as follows (transcript at p 72, lines 22 to 55):
"A short time later I saw Lai walking on the southern side of Campbell Street. I saw Lai was about three metres from a silver Nissan New South Wales registration number VKV 439 which was parked against the southern kerb of Campbell Street. Lai was still wheeling the trolley case. I saw the accused leave the driver's side of the Nissan and walk to the boot. I saw the accused open the boot. I saw Lai place the trolley case into the boot of the car. I saw the accused close the boot. I saw the accused Jin get out of the front passenger's seat of the silver Nissan. I saw Jin walk to the rear of the car where the accused and Lai was standing. I saw Lai and Jin walk north across Campbell Street while the accused returned to the driver's seat of the Nissan. I saw Lai and Jin reach the northern kerb of Campbell Street and continue walking west. I saw the Nissan move off to drive west in Campbell Street. I saw the Nissan travel and turn left into Pitt Street. I saw Lai and Jin turn right to walk north on the eastern kerb of Pitt Street. I saw the Nissan come to a stop a short distance away near the intersection of Pitt Street and Hay Street. I saw Lai and Jin continue to walk north along Pitt Street. I ran up behind the Nissan and opened the driver's door. I turned the ignition off with the key which was in the ignition I removed the key from the ignition, I took hold of the accused and said 'I am from the police, don't move'."
The police officer pulled the appellant out of the car and took him over to a police truck which had stopped nearby. He opened the boot of the Nissan and saw a black trolley case in the boot. He unzipped the bag and saw that it contained a large number of yellow coloured blocks which were later found to be heroin. The appellant had a mobile phone on his right hip, this being a Motorola phone. Detective Newton gave the appellant the usual caution and caused him to be placed in the rear of the police vehicle by which method he was conveyed to Australian Federal Police Headquarters. The appellant, during the various formalities at Police Headquarters, maintained that he was innocent. He was formally charged very early the next morning.
Analysis of the material in the suitcase found in the Nissan vehicle showed that there was something like 21 kilograms of material contained in 60 blocks in the suitcase. It was established to have been about 75 per cent pure heroin, which made the quantity in excess of 15 kilograms of pure heroin, substantially well in excess of 1.5 kilos, the measure of commercial quantity. There was evidence in the trial, and it was not disputed, that the heroin had come from South East Asia and thus had been imported into Australia, albeit by means unknown.
Mr Lai and Mr Jin were arrested shortly after in Pitt Street. An inspection of the Magna revealed two trolley suitcases in the boot. Another suitcase was found in their hotel room. A substantial quantity of heroin was in these suitcases. In all, the haul involved a street value of $182 million.
The ingredient of the Crown case which was in dispute, and significantly so, the need for the Crown to prove that the appellant had possession of the heroin. The appellant's case was that he did not know there was heroin or narcotics in his possession at all. His evidence may be summarised as follows:
The Appellant’s version of events.
The appellant came to Australia from China in 1989 and was made a permanent resident in 1996. He went back to China in 1997 and married his present wife. She remained in China until she was allowed to come to Australia in 1999.
The appellant lived at unit 10, 31 Ninth Avenue, Campsie and was the operator of a Chinese barbecue shop at Campsie between 1992 and 1994. He later worked in an electronic shop, becoming unemployed towards the end of January 1999.
About 5pm on the afternoon of 23 July 1999 he and his wife were in the Bondi area when he received a phone call from a friend who lived in Quanshu, a province of China. His friend's name was Tam Shu Sak. They had been friends for many years.
According to the appellant, his friend told him on the phone that another friend of his was coming to Australia to do some sightseeing. He asked the appellant whether he could do a favour by looking after his friend. He said perhaps the appellant could take him to a Yum Cha lunch, or they could have a meal together. The appellant said there was no problem, and suggested to his friend that he might give the appellant's phone number to the visitor.
A couple of hours later he received a phone call from a person who called himself Paul. At the time the appellant was having a meal with his wife in a restaurant. Paul said that he was a friend of Mr Sak and that the latter had asked him to contact the appellant. He asked whether the appellant might do him a favour, the nature of which was to ask the appellant whether he would be prepared to pick up a car which was to be lent to Paul by another person. This other person was too busy at work to deliver it and Paul said he was not familiar with the road system or with the Strathfield area where the car was located.
The appellant said he would pick up the car from a parking lot opposite the Chinese restaurant at Strathfield. He was given the number plate (VKV 439) and told the key would be left in the exhaust pipe. There would also be a mobile phone inside the car.
The appellant and his wife finished their meal and then drove directly from Bondi to Strathfield in their own car, a Toyota Camry. The appellant collected the key as instructed and drove the car back home to Campsie. His wife followed in the Toyota. It was by this time about 9 or 9.30 at night. About half an hour later Paul phoned again. This time he phoned through the mobile phone that had been left in the car. The appellant told him he had collected the car. Paul said it was too late for him to collect it now and he would ring him tomorrow.
The next day, 24 July, the appellant received a phone call. This call occurred around 3.20pm when the appellant was at the Campsie TAB. Paul called on the mobile phone and asked whether the appellant could drive the car into the city centre. The appellant agreed. He was told to meet Paul at the corner of Liverpool and Kent Streets. The arrangement was that they would meet about 4.30 at this location. The appellant sketched the location, after discussion with a taxi driver, on the back of a TAB ticket. (This became Exhibit “J” in the trial, a document which was found in the possession of the appellant when he was arrested.)
The appellant went home from the TAB at Campsie and picked up the Nissan car. He drove into the city and parked a little way from the corner of Liverpool and Kent Streets. He walked to the corner. It was a little earlier than 4.30. He went to the toilet at the cinema around that area and shortly afterwards he received a phone call. It was from Paul. Paul asked the appellant whether he had arrived yet. When he reached the corner he received yet another call from Paul who said, "I can't see you." The appellant looked across the road where there were two Asian looking people. The man on the phone said "I can see you now." They waved to each other. The two people came across the road, one of them said he was Paul, and introduced the person next to him as Tai. Paul said they had come together from Hong Kong and they were here on holiday.
The appellant said he took them to the spot where he had parked the car. There was some discussion about going to have a cup of coffee. The men got into the car. Tai was sitting in the front passenger's seat, the appellant was in the driver’s seat and Paul was in the rear. The car was driven to Chinatown and parked. Paul asked for the car key. He asked the appellant to wait with his friend. He walked away from the car. The appellant said he was rather tired, he adjusted his seat, leaned on the seat, talking to the other fellow inside for about 10 minutes. He noticed the car was moving. He heard the opening and shutting of the boot. After he heard the noise of the boot shut, he saw that Paul was outside the car. Paul lent in through the window and gave the car key back to the appellant.
Paul then said, "I have something important to do. I have to rush to meet this friend of mine, I can have a coffee with you later on, maybe 10 or 20 minutes later." He referred to a cinema further up the road where there was a mall with a coffee shop. Paul said, "Find a parking spot, park the car and go inside the mall and the coffee shop. I will meet you there." Paul and the other man left the car and walked away from it. The appellant drove the car towards the street where the Silver Spring restaurant is located, a position close to the coffee shop which had been mentioned. He suddenly found a policeman opening the car door, showing him his badge and taking him from the car and arresting him. He was later taken to a police station where he told the police he was innocent.
He said that he did not know that “Paul” had another car parked in the street around the corner from where the Nissan was. He said that he was not aware about the bag and that he did not know it contained heroin.
As this account shows, the appellant disputed the evidence that he got out of the car and went to the boot. He said he remained in the car talking with Mr Jin.
This particular issue took on some emphasis during the course of the trial although the trial judge rightly pointed out in his summing up to the jury that it probably mattered little. At page 11 of the summing up, his Honour said:
"Which ever way it happened it is clear that the accused did not see what was in the suitcase nor did he lift it up, so even if you accept the evidence of Constable Newton on that point it does not seem to add any weight to the question of the accused's knowledge of the contents, but that is a matter for you."
The appellant's wife also gave evidence. She confirmed that the appellant and she were at Bondi on the evening of 23 July when he received a phone call about the car, that they later went to Strathfield where the appellant collected the car and she followed him home in their own vehicle. She said that on 24 July the appellant had gone to the TAB and later returned home to say he was going to deliver the car. He left and she did not see him again that day. There was also some brief evidence by the appellant's wife explaining why it was they had two mobile phones in addition to the appellant's phone.
Points of Appeal - The Relevant Circumstances
At the conclusion of the Crown case, trial counsel made an application for a verdict by direction. The learned trial judge declined to do this. His Honour said:
"I am satisfied there is sufficient evidence to justify this case going to the jury so the direction for a directed acquittal is refused."
He added, when asked for reasons:
"In the circumstances the appellate courts say the judge need go no further than that. One does not have to enter into extensive reasons for those decisions."
The learned trial judge gave his summing up to the jury after counsel had addressed. He said this at the end of his summing up, (Page 26 of the transcript):
"Members of the jury, those are the positions taken by the Crown and the accused. I indicated to you that it is not my opinion that matters in this case but, for what it is worth, I would suggest to you that, despite all of the undoubted suspicion that surrounds this, on the facts proved there is simply insufficient evidence to establish the guilt of the accused, in the sense that he did have the necessary knowledge required, that is a matter for you."
Later, the jury sought assistance from the learned trial judge. A note was given which asked whether the judge could repeat or provide written directions as to "implications of Crown case comprising entirely of circumstantial evidence."
The learned trial judge gave a reasonably lengthy direction covering some seven pages (pp 30 to 37 of the transcript) during which, it may fairly be said, he gave forceful and firm directions to the effect that the appellant did not know of the existence of the heroin in the suitcase. As these forceful directions are set out in full in the written submissions provided on behalf of the appellant there is no need for me to repeat them in this decision. At the conclusion of the additional direction, his Honour said:
"I know I have been very firm about this but I wanted to lay it out clearly for you that when you stand back and look at it the evidence does not establish knowledge in the accused and all of these circumstantial facts do not amount to such a conclusion."
No doubt encouraged by these firm views, trial counsel for the appellant then renewed his application that his Honour should direct a verdict for the appellant. The learned trial judge once again declined to take this step, indicating that he was of the view that the Court of Criminal Appeal had said many times that "this is a matter for appellate intervention if that turns out to be the case."
A short time later the jury returned with a verdict of guilty.
Submissions on Appeal
I turn now to the submissions on appeal. Both parties have provided very helpful written submissions in this matter. As a matter of convenience, counsel for the appellant has suggested that the first two grounds may be conveniently dealt with together since they both essentially contend that there is insufficient evidence to prove that the appellant was guilty of the offence charged against him. I shall however, deal with them in reverse order since the second ground involves the judge’s views on the sufficiency of the particular evidence before the jury; whereas the first ground is concerned with this court’s assessment of the jury’s verdict in the light of the whole of the evidence.
In my opinion, there is no substance in the second ground of appeal. The learned trial judge made it plain that he was of the view that there was sufficient evidence to justify the case going to the jury. It was on this basis that he refused to direct an acquittal. It is a well established principle that where there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberation and that evidence is capable of affording a verdict of guilty, the matter must be left to the jury for its decision (Doney v The Queen (1990) 171 CLR 207 at 215).
The firm views expressed by the learned trial judge as to the way in which the jury should assess the range of circumstantial matters which constituted the evidence it had to consider did not detract from his correct conclusion that there was sufficient evidence to justify the case going to the jury. The expression of those views in their most forceful form occurred not in the principal summing up, but in answer to the later question raised by the jury in relation to circumstantial evidence. His Honour was alert to the fact that the power of the Court of Criminal Appeal to set aside a verdict that is unsafe or unsatisfactory does not involve any interference with the traditional division of functions between judge and jury in a criminal trial. This is clear from the discussion which occurred between himself and counsel throughout the transcript on this point (see transcript at p 153).
In other words, the learned judge, notwithstanding his own strong views as to the quality of the evidence involved in the circumstantial case against the accused, recognised the appropriate circumscription of his role. In my view, his Honour recognised that it was not his role or function to pre-empt a determination of fact, provided there was evidence before the jury upon which the appellant could be convicted (see The Queen v R (1989) 18 NSWLR 74 at 85).
In these circumstances, despite the forceful submissions which have criticised the propriety or otherwise of his Honour's directions, it is not necessary for the purpose of this appeal to examine or determine those submissions.

Moreover, the question whether the Crown had ultimately excluded any reasonable hypothesis consistent with innocence was itself a question of fact for the jury (Attorney-General's reference (Number 1 of 1983) (1983) 2 VR at 410.) This decision was approved in The Queen v R above.
Finally, the Court of Criminal Appeal in this state has made it clear in the case of circumstantial evidence, a judge cannot direct a verdict of acquittal if there is evidence in support of the Crown case upon which the accused could be convicted, even though a reasonable hypothesis, consistent with innocence, can be formulated (JMR (1991) 57 A Crim R 39.)
In all these circumstances the learned trial judge's decision, in which he declined to direct a verdict of acquittal, was plainly correct.
The appellant's first ground of appeal, however, is made on a different basis. It is that the verdict of the jury is unreasonable. Reliance is placed upon the general principles established by the High Court of Australia in its judgment in M v The Queen (1994) 181 CLR 487 particularly at 494.
This ground arises from the terms of s 6(1) of the Criminal Appeal Act 1912 as amended. The section is in the following terms:
"6(1) The Court on any appeal under s 5(1) against conviction shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the Court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice"
provided that the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
In M at p 493, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the Court felt that, upon the whole of the evidence, it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, it was not the function of the Court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said at (p 493):
"But, in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations."
The majority judgement (at 494) explained the application of the test as follows:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the Court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a Court of Appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
The majority judgment went on to state that the propositions set out above had been "variously expressed" in judgments of members of the Court in previous cases. However, those differences in expression were put aside in the majority judgment:
"...to provide authoritative guidance to Courts of Criminal Appeal by stating the propositions in the form in which they are set out above."
(M at p 495).
In Jones v The Queen (1997) 191 CLR 439 in the joint judgment of Gaudron, McHugh and Gummow JJ at p 451, their Honours said:
"However, the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory."
More recently in Fleming v The Queen (1998) 197 CLR 250 at 255-256, the Court emphasised that although in the past the use of the phrase "unsafe or unsatisfactory" to describe alleged errors of law in criminal verdicts had been used, the phrase is likely to mislead and attention should be given to the precise terms in which s 6 is expressed.
Application of the “M” principles to this Appeal
The Crown case against the appellant was entirely circumstantial. The learned trial judge had given a satisfactory direction to the jury that it could only find the appellant guilty of the charge if the jury were convinced beyond any reasonable doubt that there was no other explanation for the circumstantial matters other than his guilt. His Honour reminded the jury if there were another explanation consistent with the innocence of the appellant, the jury must find him not guilty.
As the statement of facts set out above demonstrates, the appellant had provided an explanation for the circumstances which led to him being in the Nissan car on 24 July 1999 when the suitcase containing heroin was found to be in the boot of the vehicle. The explanation, if capable of acceptance, exonerated him from guilty knowledge.
Knight v The Queen (1992) 175 CLR 495 was a case where the state of mind of the appellant Knight was necessarily a matter of inference from other facts found by the jury, that is, it could only arise from circumstantial evidence.
In a majority judgment Mason CJ and Dawson and Toohey JJ said at p 502:
"In those circumstances the reasoning process which must be employed if the onus of proof beyond reasonable doubt is to remain upon the prosecution is well recognised. As Dixon J said in Martin v Osborne (1936) 55 CLR 367 at 375:
'If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.'
In Plomp v The Queen (1963) 110 CLR at 243, Dixon CJ cited his previous observation in Martin v Osborne and acknowledged the difficulty found in stating the rule, a difficulty which he said "has not been overcome by employing the expression 'more consistent' as if there could be degrees of consistency". His Honour attempted clarification by citing his further words in Martin v Osborne:
'This means that, according to the common course of human affairs, the degree of probability that the occurrence of the fact proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed'.
Their Honours continued:
“There are not, as Dixon J observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance."
In my opinion, a critical examination of the full detail of the circumstantial evidence, taken with the whole of the evidence in this appeal, leaves me in considerable doubt whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant was in possession of the heroin suitcase albeit without any knowledge as to its contents. This is so notwithstanding the submissions to the contrary made on behalf of the Crown.
The thrust of the Crown submission on this point in the appeal is twofold. First, it is said that the circumstantial case was a strong one; and, secondly, recognition must be given to the unique position and function of the jury in being able to see, hear and assess the evidence given by the various witnesses. Reliance in this regard is placed especially on statements in Chidiac v The Queen (1991) 171 CLR 432 at 462; Meissner v The Queen (1995) 59 ALJR 693, and The Queen v Mackenzie in this Court (1995) 82 A Crim R 473 at 500.
As to the first argument, I am unable to agree that this was a strong circumstantial case at all. True it is, the appellant was arrested while driving a motor car which was not his own. True it is the vehicle contained a suitcase which had been placed in the boot by a person generally unknown to him, the suitcase itself containing a substantial quantity of heroin. The appellant, however, gave detailed evidence which was corroborated by his wife that he had been contacted by a long time friend from China asking whether he could do a favour by looking after a friend who was coming to Australia as a tourist. He agreed to do this and asked his friend to have the visitor call him. A short time later he received a phone call from a person who identified himself as that visitor and a friend of the appellant's friend in China. This man asked for a favour, namely whether the appellant could pick up a car in the Strathfield area. The appellant did this and was spoken to later in the evening and asked whether, for convenience, the collection of the car could take place the next day. The appellant explained that on the afternoon of the next day he was asked to bring the car into the city. He did so and in due course he made contact with two men, one of whom was the visitor who had rung the night before. On his version, something was placed in the boot of the car while he was in the driver's seat. On the police version, he left the car and opened the boot while a suitcase was put in the boot of the car. In neither version, did the evidence indicate that he had any knowledge of the contents of the suitcase. After the other two had left the car, he was driving the car a short distance to park it near the Silver Spring restaurant in Chinatown when he was arrested. At all times he maintained his innocence.
Apart from the general Crown submission that the version of events given by the appellant "defied commonsense" there was only one live issue on credibility. This was the dispute between the evidence given by the appellant and Detective Newton as to whether the appellant had in fact left the car and opened the boot at the time the suitcase was placed in it. Even accepting the Crown version of what happened, this circumstance of itself (or indeed taken with other circumstances in the case) is not capable of excluding a reasonable hypothesis that the appellant was doing no more than extending courtesy to the other man by opening and closing the car boot. It was, in my view, incapable of carrying with it as the only rational inference, the suggested inference that the appellant knew there was heroin or other narcotics in the suitcase. To adopt the phrase in Martin above, the degree of probability that the opening and closing of the boot by the appellant, while he stood at the rear of the car, would be accompanied by the occurrence of the knowledge of the contents of the suitcase could not be "so high that the contrary could not reasonably be supposed."
As the learned trial judge said, correctly in my view, to the jury:
"Even if you accept the evidence of Constable Newton on that point, it does not seem to add any weight to the question of the accused's knowledge of the contents."
The authorities referred to by the Crown on this aspect of the appeal relate to cases in which there had been not only live, but critical issues of credit involved in the issues before the jury. Chidiac, for example, involved the critical issue of the credibility of the accused's co-conspirators. The statements in these authorities are reminders that it is necessary for this Court to make full allowance for the advantage the jury has, in all cases but particularly where there are such live issues of credit. The present case however, is entirely circumstantial. As I have indicated, the only live issue on credit essentially related to a matter which did not take the circumstantial evidence in any direction so as to be capable of eliminating any inference or hypothesis consistent with the appellant's version of events. Even if the jury thought the appellant had lied on this matter, it does not seem from any material in the appeal papers that the lie, if it were a lie, was relied upon by the Crown as evidence of consciousness of guilt. For that matter, it is almost impossible to see how it could have been so relied upon. Certainly, the judge gave no “Edward's” type direction (see Edwards v The Queen (1993) 178 CLR 193) nor was he asked to give such a direction.
I return then to the circumstantial material. It is set out in considerable detail in the Crown's submissions. There were some 66 "circumstances" listed between pp 12 and 17 of the written submissions. The first group of "circumstances" relates to the expenses of the appellant's living, including household and car expenses, the ownership of mobile telephones and a landline telephone service; the fact that the appellant went to a restaurant for a meal; that in the past he had gambled at casinos and that he was at the TAB on the day of the arrest, and that he had travelled overseas. All of these matters were explored in the evidence, that is to say the cross-examination of the appellant and his wife. All were adequately explained. There was no circumstantial material revealed in these matters which was likely to have branded the appellant as a drug importer or courier. Instead, quite a pathetic picture was revealed of a Chinese couple eking out a living in a new country in very difficult circumstances.
The next set of "circumstances" was a long litany of matters involved in the arrangements to collect the car, the mobile phone and the meeting between the appellant and the two overseas visitors, Mr Lai and Mr Jin. For example, the list includes the fact that the Nissan vehicle was registered in the name of a person in South Australia; that the appellant did not know the name of the person who owned the vehicle, that he did not know where "Paul" lived or how to contact him after the initial telephone contact had been made with him. He was cross-examined about these matters and his general response was that he saw nothing strange in undertaking this favour for an acquaintance or friend of his own mainland China friend who had asked him to help out.
The third series of "circumstances" related to the step by step analysis of the events which occurred on 24 July 1999. These include the circumstances that he travelled into town by himself and did not take his wife (even though she gave evidence that she was three months pregnant at the time); and the appellant gave evidence that, because of her pregnancy, he did not want her to be wandering around or walking around too much. There was also reference to the fact that the appellant had three mobile phones. Both he and his wife were cross-examined about this and explained the circumstances which led to there being multiple mobile phones in their household.
The fourth and final set of "circumstances" related to the events which occurred during the brief time after the suitcase was placed in the boot. It is sufficient to say that none of these circumstances of themselves, individually or collectively, point to any knowledge on the part of the appellant in relation to the content of the suitcase.
The great majority of the circumstantial material is, in truth, no more than that dissection and restatement of material matters relied upon by the appellant as the innocent explanation for what he did.
In my opinion, the inherent weakness in the circumstantial case relied upon by the Crown may best be gleaned from the submission of the Crown in the trial. This was summarised by the learned trial judge in his charge to the jury. This submission was that it comprehensibly defied commonsense that the two men who had the apparent control of the heroin would have left the drug filled suitcase in the rear of the car in the circumstances described by the appellant. The Crown Prosecutor was not able to point to any particular aspect of the evidence which conclusively excluded the possibility of the truth of the explanation the appellant had offered beyond pointing to the position of the two drug carriers and suggesting that, from their point of view, the appellant's story would "defy commonsense".
In my opinion, this submission amounts to no more than speculation as to why Mr Jin and Mr Lai would have, or did, make the suspect arrangements. Perhaps they wanted to see whether the police were carrying out surveillance. Perhaps they wanted to test out the appellant's reliability. It may be that they wanted to place him in a compromised situation. All these are possibilities. They are not, however, speculations about the appellant's actions at all, but speculations about the motives and actions of the other two men involved.
It seems clear on the evidence the appellant had no connection or communication with the other two men other than as he stated in his own version of events. He was not in a position to see the Mitsubishi parked in the other street; he did not see the suitcase taken from the Mitsubishi. There is no evidence of any conversation between he and the other two men, either before or after the placement of the suitcase in the Nissan which could be relied on to sheet home guilty knowledge. There was nothing in his actions in driving to the Silver Spring Restaurant, or in his reaction to his arrest which betrayed any knowledge of the contents of the suitcase. There was nothing which cast doubt on the prospect that after the two men had their coffee with the appellant, the car (and presumably the suitcase) would be taken away by them.
This Court is required, as the decision of the High Court of Australia in M makes clear, to make its own assessment of the evidence, making full allowance for the fact that the jury was the body entrusted with the primary responsibility of determining guilt or innocence. Allowance must also be made for the fact that the jury had the benefit of having seen and heard the various witnesses.
Making all those allowances, I do not consider that it was open to the jury to reject as a rational inference the possibility that the appellant, in all the circumstances of this case, did not know that the suitcase contained heroin or narcotic drugs. I accept that some of the circumstances relied upon by the Crown may well have aroused suspicion, perhaps considerable suspicion. Even after a reading of all the evidence, not all of those suspicions are necessarily dispelled. There is, however, a significant difference between unresolved suspicion on the one hand, and satisfaction beyond reasonable doubt on the other.
In my opinion, the entirely circumstantial case here lacks probative force in the sense described in Knight supra. It does so in such a way as to lead me to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. In those circumstances, this Court is bound to act and set aside the verdict based upon that evidence.
Third Ground
In view of the conclusion I have reached in relation to this second ground of appeal, there is no need to consider or address the third ground relied upon by the appellant.
Orders Proposed

I would propose that the 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.
NEWMAN J: I will ask O'Keefe J to deliver the next judgment.
O’KEEFE J : This is an appeal by Zhong He Ye (the appellant). On 27 June 2000,he was convicted by a jury of an offence of having in his possession without reasonable excuse prohibited imports to which s 233 B of the Customs Act 1901 applied and which were reasonably suspected of having been imported into Australia in contravention of that Act. The goods in question were narcotics, namely heroin, and the amount involved was some 21 kilograms.
The appellant was sentenced to imprisonment for 12 years with a non-parole period of eight years.
From his conviction and sentence the appellant has appealed on three grounds:

The learned trial judge erred in failing to direct a verdict of acquittal at the conclusion of the Crown case;
The conviction of the appellant is unreasonable having regard to the evidence in the case;
There was no evidence to establish the accused's knowledge that the drugs in his possession constituted a commercial quantity.

The facts in this matter have been detailed by Whealy J and I adopt that statement of facts. It is therefore not necessary for me further to canvass them at this stage.
The substantial issue posed at the trial was whether the Crown had proved that the appellant had possession of the heroin. In essence this required the Crown to prove that the appellant knew that there was a prohibited import, namely heroin, in the suitcase that Mr Lai placed in the boot of the car that was being driven by and was under the control of the appellant.
The appellant gave a version as to the events and his knowledge that has also been detailed by Whealy J. That version was supported in large part by his wife. As must of necessity be the case, this occurred after the trial judge had allowed the matter to proceed to the jury. The version advanced by the appellant clearly raised an hypothesis consistent with his innocence which, even if rejected by the jury, was not put to the jury as a lie that he had told in order to conceal criminal conduct.
Failure to Direct a Verdict of Acquittal
In my opinion this ground of appeal must fail. The law on this matter has been clearly stated by the High Court in Doney v The Queen (1990) 171 CLR 207 in which it was said:
"… if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberation and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest it will not sustain a verdict of guilty."(supra at 214-215)
This means that notwithstanding the strong view that a trial judge may hold as to the quality of the evidence involved in a case which depends on circumstantial evidence against an accused, the appropriate limits on the role of the trial judge should be recognised and respected. It is not for a trial judge to substitute his or her view for the view of the jury about the evidence upon which an accused could be convicted. Furthermore, the question whether the Crown has ultimately excluded any reasonable hypothesis consistent with innocence is itself a question of fact for the jury to determine in the light of the whole of the evidence.
This approach is reinforced by the decision of the Court of Criminal Appeal in JMR (1991) 57 ACrimR 39. That decision makes it clear that in a case based upon circumstantial evidence, a judge should not direct a verdict of acquittal if there is evidence in support of the Crown case upon which an accused could be convicted, even though a reasonable hypothesis consistent with innocence can be advanced.
Applying these principles to what occurred at the trial of this matter, I am of the opinion that the decision of the trial judge to allow the matter to go to the jury was correct.
The Conviction is Unreasonable
This ground is based on s 6 of the Criminal Appeal Act 1912 which relevantly provides that:
"6(1) The Court on any appeal under s 5(1) against conviction shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable..."
There is at first blush a tension between the functions to be performed by a trial judge, by the jury at the trial and by the Court of Criminal Appeal exercising function under 6(1). Nor is it a function of the trial judge to try the facts. His or her role is to determine, and instruct the jury in relation to, the law applicable to the matter before them. It is not for the Court of Criminal Appeal to try the facts; that is a function for the jury.
However, the resolution of what might appear to be a tension between the functions to be performed by the Court of Criminal Appeal on the one hand, and trial judge and jury on the other is, in my opinion, to be found in the different roles that each has to play. As I have said, the role of the trial judge is to determine the law and instruct the jury in relation to it. The function of the jury is to determine the facts and hence, ultimately, the guilt or innocence of an accused person.
As was pointed out in Doney v The Queen (supra at 215), the function of the Court of Criminal Appeal is supervisory. The resolution of the apparent tension is to be found in the mandate to the court to apply the express terms of s 6(1) of the Criminal Appeal Act in fulfilment of its supervisory role. In exercising its supervisory role and applying the provisions of s 6(1), the principles set out in M v The Queen (1994) 181 (1994) CLR 487, must be applied. Relevantly they are:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the Court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted other otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence. In doing so, the Court is not substituting trial by a Court of Appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty." (supra at 494-495).
This view was re-affirmed in Jones v The Queen (1997) 191 CLR 439 in which Gaudron, McHugh and Gummow JJ said that:
“...the test formulated by the majority in M must... be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory." (at 451)
In this regard the terminology "unsafe and unsatisfactory," which prevailed for some time in decisions of this Court and of the High Court, has more recently been pointed out in Fleming v The Queen (1998) 197 CLR 250, to be a substitution of words for those of the statute and that a return to the words of the statute is required.
However, the principle established in M v The Queen (supra)and re-affirmed in Jones v The Queen (supra) remains applicable, since the words "unsafe and unsatisfactory" were merely used synonymically with "unreasonable," the word used in the section.
As has been pointed out by Whealy J, Knight v The King (1992) 173 CLR 495, is material to the determination of the present matter. It was a case that was concerned with the state of mind of an accused person, and the way in which it is open to a jury to infer from other facts proved in the case what the state of mind of the accused person was at the material time. In resolving the issue in that case, the members of the High Court returned to what has for very many years been the locus classicus in relation to the drawing of inferences, namely the decision of Dixon J (as he then was) in Martin v Osborne (1936) 55 CLR 367. In that case Dixon J said that if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance. In relation to the drawing of inferences from facts which do not of themselves directly establish the guilt of an accused person, he said that to do so:
"...the degree of probability that the occurrence of the facts proved must be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed". (supra at 375)
In the present case the facts proved, namely the series of matters (66 in number) to which the Crown has adverted in its submissions in this appeal, must be of such a nature as to lead to a probability so high that the contrary cannot be reasonably supposed, that the appellant in this matter knew that the contents of the case that Mr Lai placed in the boot of the car that was being driven by the appellant and was under his control, contained heroin. In my opinion, they do not do so.
In this regard it is material to note that the views of the trial judge in relation to this matter, as emerged from his summing up, are to the contrary of the high degree of probability required. In my opinion his views were correct. However, the trial judge, recognising and respecting the limitations on his functions in the trial, did not do what this Court may do on appeal in a case such as this.
Even based on the Crown version of what happened, the totality of the evidence is not, in my opinion, capable of excluding a reasonable hypothesis that the appellant was doing no more than assisting a fellow countryman, who was a visitor to this country, by extending assistance to him in driving the vehicle and in opening and closing the car boot. The evidence adduced was incapable of carrying with it an inference of knowledge of such force that it could not reasonably be gainsaid. To apply the words in Martin v Osborne (supra), the degree of probability that the circumstances established were accompanied by the existence of the state of relevant knowledge of the appellant (that it was necessary for the Crown to prove) does not exist in this case.
It has been argued on behalf of the Crown that the case presented against the appellant was strong. I do not think it was. The 66 matters referred to in the written submissions of the Crown are such that in my opinion it would only be if one approached them with a suspicious mind or a mind that had leapt forward to the guilt of the appellant, and then worked back through the facts, that they would be viewed as remarkable. Certainly they are not such as to exclude a reasonable hypothesis of innocence on the part of the appellant.
The inadequacies in the case relied upon by the Crown were such that I am left with a reasonable doubt in relation to his guilt. The power of this Court to set aside the verdict on the ground that it is unreasonable depends upon the view which the individual members of this Court form in relation to there being a significant possibility that an innocent person has been convicted (M v The Queen supra at 494). I am left in that position, even when weight is given to the fact that the jury was the body entrusted with the responsibility of determining the facts and, on that basis, the guilt or innocence of the accused, and even allowing that the jury had the benefit of seeing and hearing the witnesses.
In the present case I am left with a reasonable doubt as to the guilt of the appellant. There is in my view, a significant possibility that an innocent man has been convicted. In the light of the authorities and the extent of the power conferred by s 6(1) of the Criminal Appeal Act, this means that the second ground of appeal must succeed and that the appeal should be allowed.
In view of this conclusion, it is unnecessary for me to consider the third ground of appeal raised by the appellant.
I agree with the orders proposed by Whealy J.
NEWMAN J: I also agree with the reasons advanced by O’Keefe and Whealy J and the orders of the court will be as proposed by Whealy J.

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LAST UPDATED: 19/10/2000

[2000] NSWCCA 401

15 September 2000