R v Zhang - [2005] NSWCCA 437

No judgment structure available for this case.

Reported Decision:
158 A Crim R 504

New South Wales

Court of Criminal Appeal

CITATION:
R v Anna Zhang [2005] NSWCCA 437
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16 September 2005

JUDGMENT DATE:

14 December 2005

JUDGMENT OF:
Basten JA at 1; Simpson J at 73; Buddin J at 187

DECISION:
Appeal against convictions dismissed; Leave granted to appeal against sentences, appeals dismissed.

CATCHWORDS:
EVIDENCE – s98 and s101 of the Evidence Act 1995 (NSW) – coincidence evidence – attempted importation of narcotics – possession of narcotics – whether evidence of importation admissible in relation to the count of possession and vice versa – whether two or more related events established under s98 – consideration of ‘related events’ – whether the evidence had significant probative value – whether substantial miscarriage of justice occasioned - EVIDENCE – standard of proof – whether reference in trial judge’s summing up to ‘it was likely that she knew’ undermined the standard of proof of beyond reasonable doubt

LEGISLATION CITED:

Criminal Appeal Act 1912 s6
Criminal Appeal Rules (NSW) Rule 4
Criminal Procedure Act 1986 s29(1), 29(3)
Customs Act 1901 (Cth)
Evidence Act 1995 s95, s 97, s98(1), s101(2), s136

CASES CITED:
Bartho v The Queen (1978) ALR 418; 52 ALJR 520
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Ellis v The Queen [2004] HCA Trans 488
He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523
House v The King [1936] HCA 40; 55 CLR 499
KRM v The Queen [2001] HCA 11; 206 CLR 221
Kural v The Queen [1987] HCA 16; 162 CLR 502
McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
Pereira v The Director of Public Prosecutions [1988] HCA 57; 63 ALJR 1
R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
R v Fletcher [2005] NSWCCA 338
R v Lockyer (1996) 89 A Crim R 457
R v Matthews; R v Williams [2004] NSWCCA 259
R v Nassif [2004] NSWCCA 433
Saad v The Queen [1987] HCA 14; 61 ALJR 243

PARTIES:
Crown - Regina
Appellant - Anna Zhang

FILE NUMBER(S):
CCA 1125/2005

COUNSEL:
Mr G. Nicholson QC (Appellant)
Ms W. J. Abraham QC (Respondent)

SOLICITORS:
Andrew Liu Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0961

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ

CCA 1125/2005

BASTEN JA
SIMPSON J
BUDDIN J
14 December 2005

REGINA v ANNA ZHANG

The appellant was convicted of attempting to import a large quantity of narcotics, (crystal methylamphetamine) in contravention of s233B(1)(c) of the Customs Act 1901 (Cth) and possession of a quantity of a narcotic in contravention of s233B(1)(ca) of the Customs Act.

The offence of attempted importation was said to have been committed with Tony Tu, who was tried separately.

The appellant ran a company which imported foodstuffs from China. Bags of the narcotic the subject of the attempted importation were found by Customs officers in a consignment of foodstuffs from China. The narcotics the subject of the possession count were found in a cupboard in the bedroom of her apartment.

The appellant’s case at trial in relation to the attempted importation charge was that Mr Tu had, without her knowledge, used her food importation business to import the narcotics. In relation to the possession charge, her case was that Mr Tu had asked her to mind the bag in which the narcotics were located. She claimed she had no knowledge of the contents of the bag when she took possession of it.

The trial judge, utilising the coincidence evidence rule under s98 of the Evidence Act 1995 (NSW), allowed the evidence of the attempted importation to be used by the jury in relation to the possession and vice versa.

On appeal, the appellant argued that the evidence was improperly used as coincidence evidence. A separate ground of appeal was that the trial judge undermined the criminal standard of proof in his summing up by using the phrase ‘it was likely that she knew’.

The appellant also sought leave to appeal against the severity of her sentence.

Held in relation to coincidence evidence

Per Basten JA (dissenting):

1. The ‘related events’ for the purposes of s98 were the presence of the same form of narcotic in three places, being Ms Zhang’s wardrobe, Mr Tu’s laundry and the cargo imported on 2 May and delivered to her business premises on 13 May 2003: at [57]

2. While evidence of the knowing possession of narcotics in the wardrobe may have given rise to a powerful inference that Ms Zhang was herself involved in the attempted importation, the reverse reasoning did not apply. It followed that that attempted importation in May was not an event which, relevantly in the circumstances of the case, occurred coincidentally with the presence of narcotics in Mr Tu’s premises. If Mr Tu was an importer, as Ms Zhang alleged, it was not coincidental that he would have narcotics in his possession. If he had them in his possession, there was nothing coincidental, in a relevant sense, in providing a parcel to her for safekeeping in her apartment: at [63].

3. What was truly an improbable coincidence, for which she had no innocent explanation, was the presence in Mr Tu’s laundry of parcels of narcotics in cartons which purported to contain shipments of food and, significantly, bore the name of her company. But with respect to the apparent reasoning of the prosecution, the only relevance of this material in Tu’s possession was that it tended to confirm (rather than contradict) her explanation that she had received the material from Tu. The similarity of the material in his possession and in her cupboard was not, on her story, coincidental: at [64].

4. The presence of narcotics in Ms Zhang’s wardrobe and in Mr Tu’s laundry were not related events for the purposes of s98. Neither were the presence of narcotics in the cargo imported on 2 May and delivered to her business premises on 13 May 2003 and the presence of narcotics in Ms Zhang’s wardrobe related events: at [64].

Per Simpson J (Buddin J agreeing)

1. A properly drafted s98 Notice involves the identification of four matters:

(i) the two or more related “events” the subject of the proposed evidence;

(ii) the person whose conduct or state of mind is the subject of the proposed evidence;

(iii) whether the evidence is to be tendered to prove that a person did a particular act, and, if so, what that “act” is; and

(iv) whether the evidence is to be tendered to establish that that person had a particular state of mind, and, if so, what that “state of mind” was.

2. The related events properly characterised were that:

(i) on 14 May 2003 there was consigned to the appellant (or to a company controlled by her) a large quantity of crystal methylamphetamine, of a particular purity, packaged in cardboard boxes; and

(ii) on 14 May 2003 there was, in a wardrobe in the appellant’s bedroom, a large quantity of crystal methylamphetamine, of a similar purity, packaged in similar cardboard boxes: at [131].

3. The evidence was not strictly coincidence evidence, as defined in the Dictionary to the Evidence Act, as evidence that adduced for the purpose of establishing that, because of the improbability of two or more related events occurring coincidentally, a person did a particular act or had a particular state of mind: at [135].

4. The evidence was evidence tendered by the DPP to support one charge or the other. All of the evidence was admissible in respect of the charge to which it related. It was tendered for that purpose and not pursuant to s98. The DPP sought to expand the use that might be made of the evidence relevant to one count in order to strengthen its case on the other count. But that was a secondary purpose and not the primary purpose for which the evidence was tendered: at [139].

5. There was, in the joint trial of two charges, no question that each item of evidence was admissible:

Ellis v the Queen [2004] HCA Trans 488 referred to.

6. The task of the trial judge in determining whether to admit evidence tendered as coincidence evidence is essentially an evaluative and predictive one. The judge is required, first, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly, (if that determination is affirmative) to evaluate, in light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s98 mandates that the evidence is not to be admitted: at [139].

7. While the steps in the process taken by the trial judge in considering the use of the evidence may have been to an extent concertinaed, the correct questions were addressed and so the evidence supporting each count was admissible in respect of the other count in order to prove that , because of the improbability of the events (that is, the presence of the drugs in two premises controlled by the appellant without her knowledge) occurring coincidentally, the appellant attempted to, in the one case, and did in fact in the other, possess the substance in question: at [145].

Held in relation to whether there was a miscarriage

Per Basten JA (dissenting):

1. Leaving evidence to the jury on a count in relation to which it is not admissible may constitute a miscarriage of justice if, as a result, the appellant “may thereby have lost a chance which was fairly open to her of being acquitted”. Alternatively, the Court may dismiss the appeal under s6(1) of the Criminal Appeal Act 1912 (NSW) if it considers that no substantial miscarriage of justice has actually occurred: at [62].

Mraz v The Queen (1995) 93 CLR 493 referred to.

2. While the strength of the prosecution case was undeniable, it is difficult to be satisfied that the jury did not, in following the trial judge’s directions, make inappropriate use of the evidence with respect to the importation in considering the possession charge. There was at least a possibility that the appellant lost an opportunity of acquittal on the possession charge and so the possession conviction should be set aside and a new trial ordered: at [68]–[69].

3. Satisfaction beyond reasonable doubt that the bag in her wardrobe contained narcotics emanating from an earlier importation, would have been powerful evidence to contradict her claims of ignorance with respect to the attempted importation. While the evidence with respect to the possession could be used in that way , if the jury’s conclusion with respect to that charge was flawed, its consideration of the attempted importation charge must also have been contaminated. The conviction for attempted importation should be set aside and a new trial ordered: at [68]–[69].

Per Simpson J (Buddin J agreeing):

1. No harm was done in admitting evidence that did no more than reinforce the prosecution case or prove facts and circumstances that were not disputed: at [146].

2. The appellant’s evidence of what had happened went some way towards mitigating the effect of the coincidence evidence. The jury had to evaluate the appellant’s explanation of the presence of the drugs. If they accepted as reasonably possible that she had been exploited (unknowingly) by Mr Tu on one occasion, they may have accepted that she had been exploited (unknowingly) by him on two occasions. The difficulty for the appellant was that they plainly did not accept her account as a reasonably possible explanation for the presence of the drugs. When regard is had to the other evidence in the case, this is hardly surprising: at [148].

Held in relation to the mental element of possession

Per Simpson J (Buddin J agreeing and Basten JA not deciding):

The phrase ‘it was likely that she knew’ appeared in a sentence which itself contained a direction that the Crown had to prove beyond reasonable doubt that the appellant knew of the existence of the drugs in the bag and the packages in her flat. In the circumstances, the reference did not undermine the repeated directions concerning the standard of proof: at [165].

Held in relation to sentence

Per Simpson J (Buddin J agreeing and Basten JA not deciding):

1. The sentencing judge formed an unfavourable view of the appellant’s veracity: at [180].

2. While the judge held that neither the appellant nor Mr Tu was to be regarded as a principal, they were both actively involved in ensuring that they obtained possession of the drugs. The judge took the view that the appellant’s business was no more than a screen for the importation of drugs: at [180].

3. There was no lack of parity between the sentences imposed on the appellant and on Mr Tu: at [182]–[183].

4. The appellant was involved in the possession, or the attempted possession of a vast quantity of an illegal drug. It was fitting that she be severely sentenced: at [185].

5. Leave to appeal should be granted, but the appeal dismissed.

CCA 1125/2005

BASTEN JA
SIMPSON J
BUDDIN J
14 December 2005

REGINA v ANNA ZHANG

Judgment

1 BASTEN JA: On 14 May 2003 the Appellant, Anna Zhang, was arrested and charged in relation to an attempted importation of a large quantity of crystal methylamphetamine (a substance commonly known as “ice”), in contravention of s 233B(1)(c) of the Customs Act 1901 (Cth). The offence was said to have been committed by her with one Wei Lang (Tony) Tu. A second count on the same indictment alleged that the Appellant was, on the same date, in possession of a prohibited import, a quantity of the same narcotic, in contravention of s 233B(1)(ca) of the Customs Act. The subject of the second count was not part of the attempted importation (the first count), but was found in a plastic bag in her apartment, which was searched at the time of her arrest. In fact, the attempted importation shortly prior to her arrest on 14 May had been unsuccessful, the narcotics having been intercepted by Customs and an inert substance substituted. The narcotics found in her apartment were alleged to have been the subject of an importation in late March, with which she was not charged.

2 In relation to the goods found in a plastic bag in a cupboard in the bedroom of her apartment, she told the police that the contents were the property of Mr Tu and she had no idea that they constituted prohibited drugs.

3 Her explanation in relation to the contents of the bags in her possession at the time of her arrest, was also one of innocent possession. She did not challenge the fact that there had been an attempted importation of narcotics, but said that it had been arranged by Mr Tu.

4 On 29 March 2004, the day on which the trial was listed to commence, the Crown sought to present indictments against both Ms Zhang and Mr Tu. Mr Tu, however, made an application for a separate trial, an application which was ultimately joined in by Ms Zhang, but which was opposed by the prosecutor. As became clear from his Honour’s judgment ordering separate trials of the two accused, questions of knowledge as to the presence of the drugs were likely to be raised in both matters.

5 Those applications were accompanied, although the arguments became somewhat intertwined, with applications by each accused for separate trials on each count in the indictment. Relevantly for present purposes, the application on behalf of Ms Zhang was based, broadly speaking, on the proposition that evidence on one count would have a prejudicial effect, in relation to the jury’s consideration of the other count. The application for separate trials on the two counts was refused.

6 Apart from the question of prejudicial effect, there was a separate question as to whether the evidence on each count was admissible on the other count. The nature of the evidence, the manner in which its admissibility arose and the reasons for its admission will be separately considered, as these matters lie at the heart of the appeal. The principal argument for the Appellant focused on the admission, pursuant to ss 98 and 101 of the Evidence Act 1995 (NSW) of evidence on the one count as “coincidence evidence” with respect to the other count. Put simply, the question is whether, in the circumstances of the case, evidence which tended to show that the Appellant was aware of the nature of the substance found in her apartment was probative of her knowledge in respect of the attempted importation and whether evidence tending to establish her knowledge in relation to the attempted importation was probative of her knowledge of the nature of the substance found in her apartment.

Background

7 The Appellant came to Australia in 1990. She was born and brought up in Shanghai and, before coming to Australia, worked for a Shanghai food company for 15 years from 1974 until 1989. She said she had a “management role” with that company.

8 According to Ms Zhang she first met Mr Tu in the VIP lounge at the Star City Casino in the last week of March 2003. Prior to that he had been in China until about 16 March 2003, when he had left to come to Australia.

9 In mid-2002 Ms Zhang met a businessman, Mr John Yee, and established a food importing business which she later ran through a company, Eastern Trade and Import Pty Ltd. The company was apparently formed in late-2002. With Mr Yee’s assistance, she arranged four shipments of goods from China to Australia between July 2002 and May 2003. The shipments included cartons of rice sticks and of brown rock sugar in pieces.

10 On 2 May 2003 a container with a consignment of rice sticks for Eastern Trade and Import Pty Ltd arrived in Sydney. Of some 400 cartons within the container, 20 were identified by Customs as suspicious and were found by police to contain narcotics. The narcotics were removed and a neutral substance substituted, before the container was released.

11 On about 9 or 10 May 2003, according to the sworn testimony of the Appellant, Mr Tu asked her if she could look after the contents of a plastic bag, which were later found in a cupboard in the bedroom of her apartment.

12 On 13 May 2003 the shipment was delivered to warehouse premises in Ultimo, leased by Ms Zhang’s company. She was present during the unloading of the container and salvaged goods from a number of broken boxes, which were discarded.

13 On 14 May 2003 Ms Zhang returned to the warehouse with Mr Tu. The warehouse was under surveillance, but the police were not able to describe from observation what happened inside, although it was apparent that boxes were being moved about. Ms Zhang gave the police an account of what happened in the warehouse, to which reference will be made below.

14 Ms Zhang and Mr Tu were in the warehouse for some hours, before they left together. When they came out, Ms Zhang was carrying a yellow plastic shopping bag and her handbag. Mr Tu was carrying a green sports bag, which he left with Ms Zhang whilst he went to collect his car. He returned in the vehicle. She was seen to place the green sports bag in the rear of the vehicle and then enter by the front door on the passenger side. Mr Tu drove Ms Zhang a short distance to her apartment where she left the vehicle carrying her handbag, the yellow plastic shopping bag and the green sports bag. She was approached by Federal Police as she entered the building and was accompanied by them to her apartment. A search of the apartment disclosed a large plastic bag in the wardrobe in her bedroom, in which was located approximately 4 kilograms of crystal methylamphetamine. At the bottom of the same garbage bag were a number of boxes labelled “brown sugar in pieces”. These were not removed on that occasion, police officers returning on 17 June to recover those items, which were found to contain a further 2 kilograms of methylamphetamine.

15 The bags held by her when approached by the police contained three mobile phones, one of which was given to her by Mr Tu, the other two being her own phones. Inside the green sports bag was a Grace Bros plastic bag which contained a quantity of the inert substance which had been substituted by the police for the narcotic discovered in the container. According to the written direction left with the jury, that bag also contained a set of scales and the mobile phones. However, according to the evidence of the police responsible for the apprehension, the scales were found in the yellow shopping bag. The scales contained traces of methylamphetamine.

16 Ms Zhang gave evidence that the importations were organised by Mr Tu, in circumstances of which she was ignorant until the day of her arrest. According to her evidence, it was while she and Mr Tu were at the Ultimo storage facility on 14 May that he told her that the boxes which he was looking for in her consignment contained “a special sugar”. In her conversation with police, she claimed he had told her “somebody take this one to make some like a tablet for dancing”.

17 It was clear from the recorded conversation that her English was not good, but her evidence, given with the help of an interpreter, was essentially to the same effect. It was, she said, as a result of that conversation and her concerns as to Mr Tu’s activities that, when apprehended by police and told that her apartment would be searched, she directed them to the plastic garbage bag in her wardrobe which, she said, had been given to her by Mr Tu a few days earlier.

18 Mr Tu was also apprehended on 14 May, after leaving the warehouse in Ultimo and returning to his own apartment by car. On being searched, a piece of paper was discovered in his pocket, which contained a list of 20 numbers, some 18 of which were circled, and some also ticked, which corresponded with the numbers of the cartons in which the narcotic had been discovered by police. On the same day, his premises were searched and a quantity of crystal methylamphetamine weighing approximately 107 kilos was discovered in the laundry. The drugs were of a similar purity and in similar packaging to those located in the wardrobe in the Appellant’s bedroom.

19 In relation to the bag found in the wardrobe of her bedroom, the Appellant gave evidence of a conversation with Mr Tu when they had lunch together on 9 or 10 May 2003. At the lunch he had asked her:

“I have some personal stuff, personal possessions, whether I can put it in your place and you keep it for me for a few days?”

20 Later in her evidence-in-chief, Ms Zhang was shown some photographs of the bag in the wardrobe, taken by the police, on 14 May. Her evidence continued (transcript, p 211):

21 The Crown case was that Ms Zhang and Mr Tu had been jointly involved in importing drugs in the third shipment of food stuffs which arrived in March 2003, albeit the Appellant was not charged with that importation. The third consignment had involved some 500 cartons of rock sugar, of which Mr Yee had taken 474. It was put to Ms Zhang in cross-examination that 26 cartons had been taken out of the shipment before they went to Yee and that, of those, 13 were the cartons found in Mr Tu’s apartment. There was a similarity between the cartons found in Mr Tu’s apartment and the boxes at the bottom of the plastic bag in the Appellant’s wardrobe. That was not in itself surprising, as Mr Tu was, according to Ms Zhang, the source of the bag found in her wardrobe. Nevertheless, the Crown suggested there were three aspects of the case which were inconsistent with her evidence.

22 First, the third shipment had been arranged, with the assistance of Mr Yee, leaving China on 3 March 2003, which was before she had met Mr Tu, at the end of March. Secondly, the boxes in the bag which she had been given by Mr Tu had the name of her company, Eastern Trade and Import, on the label. Thirdly, given the fact that Mr Tu had 107 kilograms of the narcotic on his premises, it was implausible that he would have troubled to leave 6 kilograms with the Appellant.

23 In cross-examination, the following exchange took place (transcript, p 223):

24 If this had been the sole evidence relating to the second count on the indictment, it would have undoubtedly been open to the jury to convict the Appellant. On the other hand, there were links in the Crown case which were missing. Although the preferred explanation of the Crown appears to have been that the drugs in the wardrobe were imported by Ms Zhang and Mr Tu on an earlier occasion, there was no direct evidence to establish an earlier importation and Ms Zhang was not charged with any earlier importation.

The attempted importation

25 The evidence implicating Mr Tu in the May importation was significant. Further, Ms Zhang’s denial of knowledge of the inclusion of boxes containing narcotics, viewed alone, was at least plausible. She said that Mr Tu had told her, prior to the arrival of the ship, that he had had some “samples” placed in her container. There was no express evidence as to what happened inside the warehouse in Ultimo when Ms Zhang and Mr Tu were there on 14 May. Her evidence was that Mr Tu had found the boxes with the relevant numbers and had used the set of scales which were later found by the police in the green bag, to weigh the “special sugar” which he had located. It was at that stage that her suspicions were aroused that he had been using her business to import drugs, although she denied that, even then, she was sure that illegal drugs were involved.

Relevance of evidence of attempted importation in relation to possession

26 The Crown case relied on putting before the jury evidence on each count as relevant to the other. However, to assess the justification for that approach, it is necessary to consider separately the evidence specific to each count. In relation to the attempted importation, the question for the jury was whether Ms Zhang should be believed in her denial that she knew there were narcotics included in the assignment which arrived at her warehouse facility in Ultimo on 13 May 2003. Her denial would have been far less credible than otherwise, if it could be shown that she had been knowingly involved in an earlier importation of drugs with Mr Tu.

27 The reverse reasoning is not so readily apparent. Thus, if, independently of the possession count, the jury were satisfied that Ms Zhang was knowingly involved in the attempted importation in May, such a conclusion would be of limited assistance in determining whether she knew of the content of the bag given to her by Mr Tu and placed in her wardrobe on 9 or 10 May 2003. More importantly, until the jury was satisfied that Ms Zhang was knowingly involved in the attempted importation, it is difficult to see how the mere fact that Mr Tu had sought to import drugs in May, could provide significant assistance to the jury in determining her state of knowledge with respect to the contents of the plastic bag in her wardrobe, which emanated from the earlier importation.

28 By parity of reasoning, until the jury had formed the view that Ms Zhang was aware of the contents of the bag in her wardrobe, it is again difficult to see to that the mere fact that Mr Tu had given her bag a few days earlier, could assist the jury in determining whether she was knowingly involved in the attempted importation of narcotics on 14 May.

29 On the other hand, the matter was left to the jury on the basis that her apparent role in the attempted importation and her separate possession of a bag containing drugs in her apartment constituted an improbable coincidence, suggestive of guilt on both counts. This approach requires attention to the admissibility of the evidence on one count in relation to the other count and the manner in which the judge directed the jury as to how they might use such evidence.

Admissibility

30 The evidence with respect to each count was permitted to be used in relation to the other count pursuant to s 98 of the Evidence Act 1995 (NSW). Because the District Court was dealing with an offence against Commonwealth law, it was exercising federal jurisdiction invested in it by s 68(2) of the Judiciary Act 1903 (Cth): Solomons v District Court (NSW) (2002) 211 CLR 119 at [3]. The State laws with respect to evidence are applied in the exercise of federal jurisdiction by State courts, if not as part of “the procedure for … trial and conviction on indictment”, pursuant to s 68(1) of the Judiciary Act, pursuant to s 79 which expressly provides that State laws relating to evidence shall be applied, unless a law of the Commonwealth provides otherwise. There was no suggestion in the present case that any Commonwealth law had such effect.

31 Section 98 of the Evidence Act provides as follows:

98(1) Evidence that two or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:

(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence, or

(2) For the purposes of subsection (1), two or more events are taken to be related events if and only if:

(a) they are substantially and relevantly similar, and

(b) the circumstances in which they occurred are substantially similar.

32 In this context, it is necessary to note the terms of s 101 of the Evidence Act.

101(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

Evidence Act

33 The scheme of the Evidence Act is that, unless expressly excluded, “evidence that is relevant in a proceeding is admissible in the proceeding”: s 56(1). Evidence that is not relevant is not admissible: s 56(2). Evidence is relevant if it could “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”: s 55(1). Read in this statutory context, s 98 must be understood as a limitation on the principle of admissibility of relevant evidence. However, s 98 does not, simply by reference to its language, indicate why it imposes a limitation. The condition of its application is that two or more related events have occurred, which are sought to be proved by evidence. Such evidence may be admitted only if reasonable notice has been given of an intention to adduce the evidence and the court is satisfied that the evidence has significant probative value. (For present purposes this paraphrase is sufficient: it is inaccurate to the extent that it seeks to avoid double negatives.) The term “probative value” is defined to mean “the extent to which” the evidence is relevant evidence for the purposes of s 55(1). The term “significant” suggests that the evidence must do more than fulfil the basic requirement of s 55(1): see R v Lockyer (1996) 89 A Crim R 457 and R v Lock (1997) 91 A Crim R 356, 316 (albeit both discuss s 97).

34 Taken in the abstract, the term “related events” could describe events which are of the same character, or are related, but of a different character. Thus the commission of a crime and a confessional statement in relation to the crime may be separate events, which are related but of a different character. They are not the subject of this subsection because they could not be described as “substantially and relevantly similar”, nor to have occurred in circumstances which are “substantially similar” for the purposes of s 98(2). On the other hand, two armed robberies or sexual assaults may satisfy that description. It may be that two such crimes are less likely to be relevant, the one to the other, unless they are of a similar kind: the greater the similarity, the greater the potential relevance. On the other hand, unless they fall within the criteria of substantial similarity set out in s 98(2), they will not fall within the conditional exclusion contained in s 98(1).

35 The reason for the form of this provision must be found in the common law principle that resists a general process of reasoning from the occurrence of other crimes or disreputable activities to guilt of the particular crime with which the person is charged.

36 That this is the rationale for the restraint contained in s 98(1) may be discerned in part from the existence of s 101(2), which recognises the possibility that coincidence evidence can have a prejudicial effect as well as significant probative value. Were that not the case, the reason for the restriction in s 98(1) would remain obscure. Furthermore, unless so understood, it might be thought that evidence of events which were similar, but not substantially similar, and therefore not within the terms of s 98, could be admitted without reference to s 98 or s 101, if they satisfied the requirements of s 55 (subject to exclusion under ss 135 and 137). This result could not be achieved without a substantial subversion of common law principles in relation to coincidence evidence, in a manner which would render s 98 itself anomalous. The rejection of such a conclusion falls within the terms of s 9(1) of the Evidence Act, which preserves the common law in relation to evidence “except so far as this Act provides otherwise expressly or by necessary intendment”. Accordingly, s 98 should be understood as providing the limits within which “coincidence evidence” can properly be admitted.

37 Before turning to the operation of s 98 in the present case, it is convenient to make some comment as to the operation of s 101, which appears to impose a constraint on the admissibility of evidence under s 98.

38 First, as noted by Simpson J in R v Nassif [2004] NSWCCA 433 at [36] and [47], s 101(2) is expressed in terms which refer to evidence that “is adduced by the prosecution”, so as to impose the constraint that such evidence “cannot be used” against the defendant, unless it is of particular value. The terminology of the Evidence Act includes reference to evidence being “adduced”, “admitted” and “used”. Restrictions on the way in which evidence may be “used” tend to assume that it has been “admitted”: see, eg, s 136. However, evidence which is “adduced” is not necessarily “admitted”: see, eg, s 137. At least in this latter sense, the term “adduced” may be understood as referring to evidence which is tendered.

39 This approach does not, however, explain the restriction on use contained in s 101(2), which appears to assume that the evidence has not merely been tendered (adduced), but admitted. Accordingly, the restriction imposed by s 101(2) should be understood as an additional restriction on use, rather than inadmissibility. The reference to evidence being “about a defendant” and not being used against “the defendant” may also envisage admissibility in circumstances where there is more than one defendant. Whether s 101(2) should indeed be treated as “a rule of admissibility”, as suggested in R v Ellis (2003) 58 NSWLR 700 at [54] and Nassif at [47] may properly be left for another time. The approach adopted in Ellis is supported by explanatory memoranda, set out in the judgment of the Chief Justice in Ellis at [67] and [68]. Nevertheless, it is not suggested that this question is critical to the outcome of the present case.

40 Secondly, in relation to s 101(2), the test identified is that “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”. This, it may be noted, is in deliberate contrast with the terms of s 135 which permit the court to exclude evidence “if its probative value is substantially outweighed by the danger that the evidence might … be unfairly prejudicial to a party”. Whilst it is clearly the language of the section, and not the common law, which must now prevail (see Ellis at [84]), the application of this language can give rise to difficulties for the reasons noted by McHugh J in Pfennig v The Queen (1994-95) 182 CLR 461 at 528.

“Nevertheless, the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term ‘outweigh’ suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect, to the fairness of the trial. In criminal trials, the prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit. In no sense does the probative value of evidence disclosing propensity, when admitted, outweigh it prejudicial effect. On the contrary, in many cases the probative value either creates or reinforces the prejudicial effect of the evidence. In my view, evidence that discloses the criminal or discreditable propensity of the accused is admitted not because its probative value outweighs its prejudicial effect but because the interests of justice require its admission despite the risk, or in some cases the inevitability, that the fair trial of the charge will be prejudiced.”

“Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.”

41 Because the dual concepts of “probative value” and “prejudicial effect” underlie the constraints on the use of coincidence evidence contained in ss 98 and 101, it is instructive to consider his Honour’s proposition that these are “incommensurables”. To say that evidence has “probative value” is to ascribe to it a quality which inheres for the purposes of a legitimate evaluative exercise. That exercise will involve logically sound reasoning, but also evaluation in the light of experience. By contrast, “prejudicial effect” describes a departure from a proper and acceptable process of reasoning. The departure may arise as a matter of degree, and by way of conscious or unconscious processes. The conduct ascribed to the defendant may work by reference to unconscious prejudices or attitudes. Examples are more readily drawn from the past or from different cultures. Aversion to homosexual behaviour and stereotypic attitudes to people of a different race or gender, provide examples which may now appear obvious to many Australians.

42 However, prejudicial effect can also form part of a logical process of reasoning. An example is provided in the judgment of Mason P in R v GK (2001) 53 NSWLR 317, in relation to statistical evidence.

43 The precise manner in which particular evidence will work a prejudicial effect may be of some importance: if there is a legitimate use and an illegitimate use, the risk of an unfair trial through adoption of an illegitimate use, may be averted by an appropriate direction to the jury. However, that question only arises where s 101 is engaged: the first question is one of admissibility pursuant to s 98.

44 Returning to s 98, the language focuses upon the concept of “coincidence”. Understood in its context, coincidence must refer to innocent (or non-criminal) explanation. However, the application of the principle will vary according to circumstances. In one case, the existence of the alleged events may be the issue; in another, the defendant’s innocent explanation may be the issue. Thus, in Hoch v The Queen (1988) 165 CLR 292, allegations of substantially similar sexual offences, each of which was denied by the defendant, only acquired the character of improbable coincidences if the complainants were not known to each other and did not harbour a common antipathy towards the defendant, possibly unrelated to any sexual activities. In other words, the possibility of co-ordinated concoction provided an explanation for the similarities otherwise than by way of improbable coincidences, but consistently with the denials of the defendant. Similarly, where a person is employed as a courier for ostensibly innocent purposes, the fact that, unbeknownst to her, she has carried drugs across a border on several occasions, is not necessarily a “coincidence” rendering her unwitting behaviour improbable: compare R v Tamotsu (1999) 109 A Crim R 193.

45 At [139] below, Simpson J seeks to adopt an approach to the application of s 98, which her Honour set out in respect of s 97 in R v Fletcher [2005] NSWCCA 338 at [32]-[35]. Two preliminary points may be made in relation to that material. First, her Honour stated in Fletcher at [32] that a decision about the admissibility of evidence “necessarily and of itself involves the determination of a question of law”. That proposition may cover several issues. For example, wrongful admission of evidence may mean that the trial proceeded on a legally erroneous basis, but the error in assessing admissibility need not be a legal error: c.f. R v Gidley [1984] 3 NSWLR 168, 169-170 (Mahoney JA). However, that issue need not be addressed for present purposes. More importantly, her Honour suggested in the same paragraph that appellate challenge to such a decision, which involves “an evaluative process”, may only be made in limited circumstances which she identified at [48] in Fletcher by reference to the principles established in House v The King (1936) 55 CLR 499, at 505. House was concerned with the basis upon which an appellate court might interfere with a particular exercise of the discretionary power of a sentencing judge. However, there is a distinction in principle, even if the dividing line may be blurred in particular circumstances, between the exercise of a discretionary power and the making of a finding of fact which involves a level of “evaluation and judgment”: see, in a different context, Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [10] ff (Gleeson CJ, Gaudron and Hayne JJ), [115]-[116] (Callinan J). As presently advised, I would take the view that an accused should have no less protection under s 6(1) from an erroneous ruling by a trial judge than that enjoyed by a civil litigant albeit on an appeal by way of rehearing. The correct approach to the exercise of evaluating the evidence should follow that identified in Warren v Combes (1979) 142 CLR 531.

46 A separate concern relates to the five principles identified by her Honour in undertaking the exercise required under s 98 of the Evidence Act, at [139] below. The first two principles set out are unexceptionable. The third principle introduces a concept of the “actual probative value” of evidence, being the probative value assigned by the jury. The decision under s 98 is then said to be a two stage process by which the trial judge first identifies whether evidence is “capable of” rationally affecting the probability of a fact in issue, and, secondly, evaluating the likelihood that the jury would assign the evidence significant probative value. I do not agree with that approach, nor do I think it is supported by the judgment of Hunt CJ at CL in R v Lockyer (1996) 89 A Crim R 457. His Honour’s discussion in Lockyer, at least at 460, was concerned with the exercise required by s 135 (and one might add, relevantly for present purposes, s 101(2)), namely the assessment of whether the probative value outweighs any prejudicial effect. It is true that the concept of prejudicial effect requires an assessment of the misuse of the evidence which might be made by a jury, comprising people without legal training. On the other hand, I do not think that the assessment of “probative value” requires such an exercise. That conclusion follows from the definition of “probative value” in the Dictionary to the Act, namely “the extent to which the evidence could rationally affect the assessment of the probability” of a fact. Evidence has significant probative value if it could have such an effect, to a significant extent. The trial judge is not required to second-guess the jury: the judge must make his or her own assessment of probative value for the purposes of s 98.

47 It follows that, in my view, her Honour has set herself a legally incorrect test at [139] below and has applied an overly constrained approach in her assessment of factual findings, limited by the principles stated in House: see [141] below.

Application of principles

48 The first question of importance in applying s 98 is to identify the two or more “related events”. These events must be identified with a certain level of precision, in order to determine whether they are indeed within the terms of sub-s 98(2).

49 For the purposes of s 98, the prosecution is required to serve a notice of its intention to adduce the evidence. Section 99 of the Evidence Act provides:

99 Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.

(a) the substance of the evidence of the occurrence of two or more related events that the party giving the notice intends to adduce, and

(b) particulars of:

R v AN

50 It will be necessary to come back to the terms of his Honour’s summing up in due course, but for present purposes it may be noted that a 10 page written direction was distributed to the jury approximately halfway through the summing up. The first four pages of that direction dealt with some general matters and briefly addressed the elements of each of the two counts. Subject to some variations agreed with counsel, pages 5-9 set out the contents of the notice given by the prosecution with respect to coincidence evidence in relation to each count. The evidence was set out twice because the Crown relied on what it described as “circumstantial evidence” in relation to count 1 as “coincidence evidence” in relation to count 2, and vice versa. There were further directions given in relation to the use of coincidence evidence, which will be discussed further below.

51 In relation to count 1 (the attempted importation charge), the circumstantial evidence was identified as follows:

52 With the possible exception of the first matter, namely the date Mr Tu left China, each of the items referred to related to the cargo which arrived on 2 May 2003, which was the subject of the attempted importation charge.

53 These matters were repeated, verbatim, as “coincidence evidence” relevant to the possession count. With the possible exception of the first item, namely the date Mr Tu left China, the manner in which that evidence demonstrated the improbability of Ms Zhang being ignorant of the contents of the plastic bag found in her wardrobe, is somewhat obscure. The inclusion of the first item is even more puzzling because it was part of the circumstantial evidence said to be relevant to the possession count in any event.

54 In relation to count 2 (the possession charge) the circumstantial evidence was identified as follows:

55 At the present stage, the question to be addressed is one of admissibility. In that regard, the first question to address is the nature and circumstances of the two “related events”. The first difficulty is that the notice (the validity of which was not challenged) failed to identify separately from the evidence sought to be adduced, the date, time, place and circumstances of each event. Indeed, it might be inferred from the notice that each paragraph of the notice identified a relevant “event”. However, that could not be right because, for example, the presence of Mr Tu in China on a particular date was not an event which bore comparison, let alone similarity, with the arrival of a container in Australia.

56 On 5 April 2004, after the defence case had been completed, his Honour delivered judgment on the admissibility of the coincidence evidence. In the course of that judgment his Honour noted the sole issue relevant to admissibility (at p 2):

“The Crown submits that a matter attracting admissibility of the evidence is the state of mind of the accused: that is to say, her knowledge. The way in which the case has been conducted, the only real question in dispute between the Crown and the defence is whether the accused knew that there were drugs in cargo in premises which she controlled and in her own domestic premises, a flat in which she lived.”

57 It appears from a fair reading of the judgment on admissibility, taken as a whole, that the relevant “events” were the presence of the same form of narcotic in three places, namely:

(a) Ms Zhang’s wardrobe;

(b) Mr Tu’s laundry, and

(c) the cargo imported on 2 May and delivered to her business premises on 13 May 2003.

58 After noting dissimilarity revealed by the fact that drugs in her wardrobe were found in plastic clip-seal bags, and were of a lower level of purity, his Honour continued:

“However, having regard to the way in which the case was run and the evidence and the cross-examination of the accused, it seems perfectly obvious that the shipment which caused the Federal Police to move upon her was the fourth of four shipments and she had clearly been bringing in material from China in the previous three shipments of brown sugar in pieces, being the subject of earlier importations.”

59 His Honour also treated the location of the drugs as important, although he expressed it in terms which appear to confuse the question of improbability of the events occurring coincidentally and the level of similarity. Thus his Honour stated (at p 7):

“What is improbable, it seems to me, is not just to do with the percentage of drug but the fact that the same drug is found in three locations and that each of the persons who have had access to sources of such drugs have also in their premises had precisely those same drugs.”

60 In truth, the strength of the Crown’s case was a dissimilarity, namely that whilst Mr Tu might have been in a position to organise the inclusion of drugs in the shipment which arrived on 2 May, Ms Zhang’s own evidence suggested that he was not in a position to do that in relation to the earlier shipment, which appears to have produced the drugs which were found in her wardrobe.

61 Coincidence evidence may be relied upon, in the terms of the section, either to prove that a person did a particular act, or that a person had a particular state of mind. The present case involves the latter circumstance. That, however, requires some level of precision in identifying why a person would have a particular state of mind because of the improbability of two or more events occurring coincidentally. It would seem that one element of the events must be the state of knowledge or intention of the person whose state of mind is in issue. A classic case involving this kind of reasoning was R v Mortimer (1936) 25 Cr App R 150, a case in which an accused was charged with the murder of a female cyclist whom he had run down. His defence was to deny any recollection of the act, to disprove which the prosecution adduced evidence that he had driven at three other women cyclists in a short period prior to the homicide. For an example of sequential passing of worthless cheques admitted to show an intention to defraud, see R v Ollis [1900] 2 QB 758.

62 Where knowledge is sought to be proved, care must be taken to identify the sense in which possession without knowledge of the nature of the goods may be plausible in relation to one event, but implausible in relation to two or more related events. This analysis of the evidence tendered by the Crown was not attempted in the judgment on admissibility. Had the proper analysis been undertaken, two important aspects would have been identified. The first would have been that the presence of 13 cartons from a shipment of brown sugar pieces at the premises of Mr Tu would not readily demonstrate that the Appellant knew that the cartons contained narcotics unless it was known how Mr Tu came by the cartons. No evidence was given as to that matter at Ms Zhang’s trial. Secondly, as noted above, the real probative value of the evidence concerning the earlier shipment was that, because it appears to have taken place, on Ms Zhang’s evidence, at a time when she had no knowledge of Mr Tu, it was improbable, because unexplained, that he had organised the inclusion of narcotics, without Ms Zhang’s knowledge, in the earlier shipment.

63 It follows, in my view, that whilst evidence of the knowing possession of narcotics in the wardrobe may have given rise to a powerful inference that Ms Zhang was herself involved in the attempted importation, the reverse reasoning does not apply. It follows that the attempted importation in May was not an event which, relevantly in the circumstances of the case, occurred coincidentally with the presence of narcotics in Mr Tu’s premises. If Mr Tu was an importer, as Ms Zhang alleged, it was not coincidental that he would have narcotics in his possession. If he had them in his possession, there was nothing coincidental, in a relevant sense, in providing a parcel to her for safekeeping in her apartment.

64 What was truly an improbable coincidence, for which she had no innocent explanation, was the presence in Mr Tu’s laundry of parcels of narcotics in cartons which purported to contain shipments of food and, significantly, which bore the name of her company. But, with respect to the apparent reasoning of the prosecution, the only relevance of this material in Tu’s possession was that it tended to confirm (rather than contradict) her explanation that she had received the material from Tu. The similarity of the material in his possession and in her cupboard was not, on her story, coincidental. Accordingly, events (a) and (b) (as identified in [57] above) were not related events in relation to each other. Nor was (c) a related event in relation to (a).

Miscarriage of justice

65 The remaining question is whether the fact that the evidence with respect to the attempted importation and the material in Mr Tu’s laundry was left to the jury as relevant to proving the possession count caused a miscarriage of justice, in accordance with s 6(1) of the Criminal Appeal Act 1912 (NSW). Leaving evidence to the jury on a count in relation to which it is not admissible may constitute a miscarriage of justice if, as a result, the appellant “may thereby have lost a chance which was fairly open to [her] of being acquitted”: see Mraz v The Queen (1955) 93 CLR 493 at 514 (Fullagar J). Or, as the proviso to s 6(1) states, the Court may dismiss the appeal “it if considers that no substantial miscarriage of justice has actually occurred”. In order to determine the answer to this question, it is necessary to consider the explanation given to the jury in relation to the use of coincidence evidence.

66 The jury were told on several occasions that they were entitled to consider all the evidence on one count in relation to the other. Early in his summing up his Honour explained:

“And the reason for that, comes from something the Crown mentioned to you, that of coincidence, that is that there was arguably, such striking coincidence between various things that were found in the two places and various other events that you are entitled to consider whether they are merely coincidences or whether it is so improbable that they are purely coincidental that the only conclusion could be that they are not.

Now in particular what the Crown says is that the fact of methylamphetamine being found in her shed and methylamphetamine being found in her flat is a remarkable coincidence and it is not just a coincidence.”

67 The key passage in which the trial judge returned to this question came at the end of his summary of the prosecution case. After referring again to the entitlement to take into account evidence on each count in respect of the other, his Honour continued with the following explanation.

“Now what that means that you have to do, you have got to look through all the matters that I have said are circumstantial evidence and consider them and, in particular, the circumstances that there were found in her flat in ‘brown sugar in pieces’ boxes, crystal methylamphetamine, there were found in her cargo shed, a box that contained ‘brown sugar in pieces’ boxes and in that cargo shed there was found – well there were boxes in which the police had previously found crystal methylamphetamine, and in Mr Tu’s premises, in the ‘brown sugar in boxes’ packets, there was crystal methylamphetamine, and in each place it could be said there were significant quantities. In her flat 6 kilograms, in his premises 107 kilograms and I cannot remember the exact number of kilograms that were originally in the boxes but well over 100 kilograms there. So large quantities of drugs, all the same drug, and with the exception of the drug in the sealed plastic bags that were first found in her flat, all roughly the same chemical composition … .

Now if you find it glaringly improbable that just by coincidence there could be those drugs, in those packages, in those places and in those quantities, then you are entitled to use the evidence, all that evidence, in considering the case against her on both counts.”

68 In a written direction handed to the jury, the use of coincidence evidence was set out in less than one page out of 10, and the key passages were brief and to the following effect:

“The Crown says it is improbable that the accused would have imported a cargo in which there was crystal methylamphetamine and as a matter of coincidence there would be found in her flat and the flat of Mr Tu, crystal methylamphetamine, much of it in the same type of packaging.

The Crown says it is an affront to common sense that such a coincidence should have occurred. …

If you accept, however, that you are satisfied beyond reasonable doubt that the circumstances in count 1 are so strikingly similar in the respects which I have mentioned to those in count 2 as to lead inevitably to the conclusion that the accused had knowing possession of narcotics, then you are entitled to convict her of both offences.”

69 Apart from a restatement of generalities (part of which has been omitted in the quotation set out above), the short description of the nature of the coincidence in the first sentence, is all that the jury got in terms of specific direction from the trial judge, apart from the list of items of coincidence evidence said to be relevant on each count.

70 If the jury had been instructed that, taking into account the narcotics found in her premises, and being satisfied that she knew what was in the plastic bag in her wardrobe, that would have provided cogent evidence that her denial in relation to the attempted importation was false, no complaint could have been made. However, if they were in doubt as to her knowledge of the contents of the bag in her wardrobe, the fact that there was a quantity of the same narcotic in the subsequent attempted importation was at least consistent with her story that Mr Tu was responsible for the importation and would not have provided significant evidence of her knowledge of what was in the bag in her wardrobe. Her story was that she had become aware of the narcotics in the attempted importation from Mr Tu when he was isolating the relevant boxes in the storage facility. It was then, she said, that she became suspicious of the contents of the bag in her wardrobe and directed the police to it when she was arrested.

71 Although the Crown case relied heavily on circumstantial evidence to demonstrate her awareness of what was likely to be in the bag in her wardrobe, and in the intercepted container, the strength of the prosecution case was undeniable. However, it is difficult to be satisfied that the jury did not, in following the trial judge’s directions, make inappropriate use of the evidence with respect to the importation (count 1) in considering the possession charge (count 2), and come to a conclusion which was not inevitable, had an appropriate direction been given. The Appellant’s trial not having been conducted according to law, there is at least a possibility that she lost an opportunity of acquittal on the possession charge. Accordingly, the conviction with respect to the possession charge should not be allowed to stand. Further, it is clear that satisfaction beyond reasonable doubt that the bag in her wardrobe, contained narcotics emanating from an earlier importation, would have been powerful evidence to contradict her clams of ignorance with respect to the attempted importation. Although the evidence with respect to the possession charge could properly be used in that way, if the jury’s conclusion with respect to that charge was flawed, its consideration of the attempted importation charge must also have been contaminated. If the conviction on count 2 cannot stand, the conviction on count 1 must also be set aside.

72 In my view, the appeal should be allowed, the verdict of the jury on each count should be set aside and, pursuant to s 8(1) of the Criminal Appeal Act, a new trial should be ordered on each count.

73 SIMPSON J: On 7 April 2004, following a jury trial, the appellant was convicted of two offences against the Customs Act 1901 (Cth). She now appeals against each conviction and seeks leave to appeal against the sentences subsequently imposed. Those sentences are set out below [170]. The offences of which the appellant was convicted were, firstly, of attempted possession of not less than the trafficable quantity of illegally imported goods (narcotics), and, secondly, of possession of not less than the trafficable quantity of goods reasonably suspected of having been illegally imported (also narcotics). Each offence was alleged in the indictment to have been committed on or about 14 May 2003.

74 I have read in draft the judgment of Basten JA. I have reached a contrary view.

75 A trial of the charges was fixed to commence in the District Court on 29 March 2004. Initially the appellant was to be tried on an indictment jointly with her co-accused, a man named Wei-Liang Tu (also known as Tony Tu), who was charged jointly with her on the first count, of attempted possession of not less than the trafficable quantity of illegally imported narcotics; he was charged also with possession of not less than the trafficable quantity of illegally imported narcotics, but this related to a different quantity of a similar (but not the same) drug. There were thus three counts on the original indictment: one charging the appellant and Mr Tu jointly with attempted possession of the same quantity of the drug; the second charging the appellant with possession; and the third charging Mr Tu with possession.

76 Prior to the commencement of the trial the Director of Public Prosecutions (“the DPP”) gave notice of his intention to adduce, under s98(1) of the Evidence Act 1995, coincidence evidence in relation to each of the three charges then on the indictment. The DPP served on each accused a detailed Notice under s98(1) particularising the coincidence evidence he proposed to adduce. A reading of this document suggests that what the DPP proposed to do, in relation to each count, was to rely, as coincidence evidence, upon the facts and circumstances upon which he relied to establish each other count.

77 On the day fixed for the commencement of the trial an application was made on behalf of Mr Tu for a separate trial of the charges against him. Counsel for the appellant somewhat belatedly joined in that application. Counsel for the appellant also applied for separate trials of the two counts on which she was to be indicted.

78 The transcript records the discussion that took place in relation to the applications. The preponderance - indeed, as I read the transcript, virtually the entirety - of the argument was directed to the question of the separation of the trials of the two accused; this resulted, ultimately, in a judgment in which Finnane DCJ acceded to those applications. The appellant’s application for severance of the two charges against her was treated in a rather more cursory fashion. Indeed, from a reading of the transcript, it is difficult to discern the basis on which the latter application was advanced. The economy with which this application was presented finds an echo in the judgment. In refusing the application, his Honour merely said:

“Application has also been made by Mr Bellanto [senior counsel who appeared at trial for the appellant] and I think joined in by counsel for Mr Tu, Mr King, that each of the trials of the counts against their respective clients should be held separately. Because there are separate elements in each it cannot be said that the drug is the same and there is to a certain degree, some prejudice in having the trials run together.

I am unable to agree with that proposition. The events out of which these charges arose seem to have occurred over a relatively short space of days. It cannot be said that the drugs in counts 2 and 3 [it appears that count 3 on the draft indictment, as it then stood, was the charge against Mr Tu] were imported or sought to be imported at the same or near the same time as the drugs in count 1. But certainly the drugs in those particular charges were all the subject of investigative activity occurring at about the same time and arising out of the one investigation.

I am not prepared to separate those counts into separate trials. So the trial of Anna Zhang on count 1 and count 2 will be conducted so that the evidence in both of those matters will be heard together. ....”

79 The transcript records that, following that decision, some discussion took place about the use of the evidence the Crown sought to adduce in that trial, pursuant to s98(1) of the Evidence Act, as coincidence evidence. Senior counsel for the appellant is recorded as saying:

“Our approach to the severance argument is really count 2 as far as we’re concerned, Ms Zhang is concerned, is a backdoor way of getting in propensity or coincidence evidence by preferring a separate count. Now once your Honour has ruled that that count should stay, the wind’s been taken out of our sails, so to speak, because the thrust of our argument is that that evidence shouldn’t be admitted because it’s not sufficiently connected to the facts giving rise to count 1.” (AB 1 p 73)

80 Counsel for the appellant pressed for a determination as to whether the coincidence evidence would be “admitted”. Counsel for the DPP urged deferral of that determination until the end of the prosecution case. His Honour declined, at that stage, to rule upon the issue. In other words, it appears to have been accepted (correctly, in my opinion) that, once the decision to try the two charges against the appellant jointly had been made, no question arose about the admissibility of any individual item of evidence mentioned in the Notice; the coincidence evidence issue, in truth, concerned the use that might be made by the jury, in determining each count, of the evidence supporting the other count.

81 The refusal to separate the trials of the two counts gives rise to the first and second grounds of appeal, which are in the following terms:

“1. His Honour erred in failing to order that counts 1 and 2 in the indictment be tried separately.

2. His Honour erred in failing to discharge the jury at the conclusion of the evidence.”

82 The trial commenced on 30 March 2004 and proceeded over the ensuing six days. The Crown case closed on 1 April (Thursday). On that day, and the following day (Friday 2 April), the appellant gave evidence. The defence case then closed. A debate concerning the use of coincidence evidence took place during the morning of Monday 5 April. Essentially, counsel for the DPP acceded to a proposition put by Finnane DCJ that his intention was to use the evidence in each count as relevant to, and in support of, the other count (AB 2 p 301).

83 On the same day his Honour gave judgment. After reciting the relevant facts, and the arguments advanced by each counsel, his Honour concluded that the evidence was “admissible”. The effect of this ruling was to permit counsel for the DPP to put to the jury a submission based upon s98(1), and the jury to use coincidence reasoning in their deliberations in respect of each individual count. This decision is the foundation of the third and fourth grounds of appeal, which are in the following terms:

“3. His Honour erred in admitting into evidence on Count 1, evidence given by Prosecution witness (sic) in the trial of Count 2, including evidence classified as coincidence evidence.

4. His Honour erred in admitting into evidence on Count 2, evidence given by Prosecution witness (sic) in the trial of Count 1, including evidence classified as coincidence evidence.”

84 There are many additional grounds of appeal, to which I shall later refer.

85 It is convenient now to outline the facts and circumstances alleged in the prosecution case, the bulk of which were not in dispute.

The prosecution case

86 The prosecution case was said to have been a circumstantial one. I find that a little puzzling, but there is no need to explore that question. The DPP served a Notice of intention to rely on circumstantial evidence, cataloguing the “circumstances” on which he wished to rely. The “circumstances” there outlined were identical with the circumstances identified as coincidence evidence.

87 The evidence given on behalf of the DPP amounted to the following. The appellant was the proprietor of a company identified in the evidence as “East [or Eastern] Trade and Import”, the business of which was the importation of foodstuffs from China. On 24 March 2003 a container arrived by ship from China, consigned to “Eastern Trade and Import”. It was said to contain rice sticks and rock sugar. The contents were released for delivery on 3 April. The shipment left China on 3 March.

88 On 2 May 2003 a second container arrived by ship from China, consigned to the same company. This container was delivered to a Customs facility at Port Botany. On inspection by Customs officers it was found to contain a number (401) of brown cardboard boxes, each of which was numbered. 21 of the boxes were discovered to contain crystal methylamphetamine. In all, the boxes contained over 212 kilograms of the substance, or 163 kilograms of pure methylamphetamine. Customs officers notified Australian Federal Police (“AFP”) agents, who removed the narcotics, for which they substituted an inert substance. AFP agents then maintained surveillance of the container. On 12 May the container was cleared through Customs, and on 13 May it was delivered to a storage unit at Ultimo, a unit occupied by the appellant’s company for the purpose of the importation business. The contents of the container were unloaded and placed in the storage unit. The appellant was present and involved herself in the unpacking, and in repairing some apparently damaged cardboard boxes. The truck which had delivered the container left and the appellant entered the storage unit, where she remained for a short time. The following morning, 14 May, the appellant, in company with Mr Tu, entered the storage unit and they remained therein for in excess of five hours. When they left Mr Tu was carrying a green sports bag and the appellant a yellow shopping bag. They entered Mr Tu’s motor vehicle and drove off. They drove to the appellant’s apartment building, also in Ultimo; she alighted, taking with her the green sports bag as well as the yellow plastic bag which had previously been in her possession. The appellant was then arrested. Inside the green sports bag, packed in another plastic bag, were a number of sealed plastic bags, which contained a crystalline substance, later shown to have been the substance substituted for the narcotics. Inside the yellow plastic bag was a set of scales which bore traces of methylamphetamine. She was also in possession of three mobile telephones. Mr Tu was also arrested shortly afterwards. He had in his possession a piece of paper on which was written a list of 20 numbers, 18 of which were circled and many of which had been ticked.

142 The first question which must be asked and answered is therefore: what are the two or more events upon which the DPP sought to rely as “related events”? I have set out above my attempt to identify the related events. The DPP’s perception of those “events” (which might more accurately be described as “facts or circumstances”) is set out in the s98 Notice. Those facts and circumstance were capable of giving rise to an inference that the appellant had attempted to possess the narcotics in the container; and had, in fact, possessed the narcotics in her wardrobe. These were the ultimate “events” on which the DPP sought to rely to establish the appellant’s knowledge of the identity of the substance. The preliminary question, therefore, for his Honour, was whether those events were “substantially and relevantly similar”, and whether the circumstances in which they occurred were “substantially similar”. His Honour did, in his judgment, address these questions. He said this:

“The improbability of drugs of exactly the same type being found in three separate premises, some of them, or for the most part in packages that are identical and make it clear that they were imported from China and those premises being premises which the accused had access to in respect of two of them and which Mr Tu had access to in respect of two of them make it glaringly improbable, I would have thought, that this could be regarded as purely coincidental.”

143 A little later, he said:

“I do not think this alleged similarity (sic ?dissimilarity) really does much to dissuade me about the striking improbability of the coincidences of the other matters, and indeed that matter being purely coincidental. What is improbable, it seems to me, is not just to do with the percentage of drugs but the fact that the same drug is found in three locations and that each of the persons who have had access to sources of such drugs have also in their premises had precisely those same drugs.”

144 Thus, his Honour did, properly, consider the question posed by subs(2). The conclusion he reached was plainly open to him and was correct. What he did not do was explicitly to embark upon a consideration of the remaining questions which I have proposed. He did not expressly consider whether the evidence was capable of rationally affecting the probability of the existence of a fact in issue (the only fact in issue, in each case, here, being whether the appellant knew of the identity of the substance concerned); and he did not embark upon the evaluative and predictive exercise of assessing the likelihood that the jury would assign significant probative value to the evidence. However, in my opinion, he did do so implicitly. He expressly referred to the provisions of s98 and s101(2).

145 Bearing in mind that reasons such as these are given under considerable pressure, during the course of a criminal trial, with a jury waiting, and without the luxury of time for reflection and refinement of expression, it seems to me that, although the steps in the process may have been, to an extent, concertinaed, the reasons suggest that the correct questions were addressed. In effect, his Honour held that the two events did have the relevant similarities; that the circumstances in which they occurred were substantially similar; that, in each case, on each count, the evidence that established the other was capable of having significant probative value; and that it was likely that the jury would assign significant probative value to the evidence. That being so, the evidence supporting each count was admissible in respect of the other count in order to prove that, because of the improbability of the events (that is, the presence of the drugs in two premises controlled by the appellant without her knowledge) occurring coincidentally, the appellant attempted to, in the one case, and did in fact in the other, possess the substance in question.

146 Given the narrowness of the issues that the jury had, in the end, to decide, it may be that, to some extent at least, the DPP’s reliance upon coincidence evidence was superfluous. Much of what is contained in the s98 Notice is apt to establish ingredients of the offences that were no longer the subject of dispute – for example, that the appellant had in her possession (in the ordinary sense in which the word is understood, without the added layer of knowledge) the narcotics, or the substitute substance, the similar purity of the drug in each case, and the nature of the packaging. Had the appellant’s actual possession of the boxes been in issue, or had the identity of the substance been in issue, this evidence would have added strength to the prosecution case. But, in my opinion, no harm was done in admitting evidence that did no more than reinforce the prosecution case or prove facts and circumstances that were not disputed.

147 It will be observed that, in the third paragraph of the coincidence evidence directions extracted above, his Honour correctly formulated the true issue for the jury’s determination. What he did not do, either in the written directions, or his oral directions, was to identify any coincidence evidence that would assist the jury in the determination of that issue. That is probably because the evidence tendered as coincidence evidence was, at most, peripheral to that issue. In particular, the oral direction in the following terms:

“If, however, the circumstances in count 1 are so strikingly similar in the respects to which I have mentioned to the circumstances in count 2, as to lead inevitably to the conclusion that the accused had possession of narcotics, then you are entitled to convict her of both offences.”

“Now if you find it glaringly improbable that just by coincidence there could be those drugs, in those packages, in those places and in those quantities, then you are entitled to use the evidence, all that evidence, in considering the case against her on both counts.”

148 The evidence may have done little to enhance the prosecution case in respect of the single disputed issue, the appellant’s knowledge. The jury had to evaluate her evidence, that she had, in effect, been duped by Mr Tu, and that this had occurred on two occasions. The jury’s assessment of her evidence would not, in the circumstance, significantly have been affected by her claim to have been duped not once but twice. Her explanation was equally plausible whether it related to one or two occasions. It may have been otherwise had her claim been that the trickery had been perpetrated on two different occasions by two different individuals. In that case evidence of trickery having been perpetrated by one individual on one occasion may well have cast light upon the improbability of similar trickery having been perpetrated on the other occasion by another individual. The appellant’s evidence of what had happened went some way towards mitigating the effect of the coincidence evidence. The jury had to evaluate the appellant’s explanation of the presence of the drugs. If they accepted, as reasonably possible, that she had been exploited (unknowingly) by Mr Tu on one occasion, they may have accepted that she had been exploited (unknowingly) by him on two occasions. The difficulty for the appellant is that they plainly did not accept her account as a reasonably possible explanation for the presence of the drugs. When regard is had to the other evidence in the case, this is hardly surprising. The appellant had spent several hours in the storage unit with Mr Tu, during which time the packages containing the drugs had been isolated from the others. When arrested, she was in possession of the substance that had been substituted for the drug, and scales bearing traces of the methylamphetamine. Six kilograms of the drug were found in her house, in a wardrobe in her bedroom. The jury may well have regarded her account as implausible, given the 107 kilograms of the drug found in Mr Tu’s possession. Most tellingly, perhaps, on her own account, the March shipment was consigned from China before she had met Mr Tu.

149 That the jury did not accept the appellant’s account is not a consequence of the joint trial of the two charges, or of the authorised use of coincidence reasoning.

150 It is to be observed that at no time was any attention directed to whether the evidence was, or was in addition to being capable of being coincidence evidence, tendency evidence, admissible within s97 of the Evidence Act. Certainly, at face value, the evidence had some at least of the hallmarks of tendency evidence, and may have been admissible on that basis. But as it was never tendered on that basis, and no argument was addressed to that question, it is inappropriate to embark on any consideration of it in that way.

151 In the end, the issue for the jury was a very simple one. It was whether the DPP had eliminated the reasonable possibility that the drugs came to be in the appellant’s premises as she contended, and without her knowledge. Despite some superfluity in the evidence and the directions, the jury could not have been under any misapprehension about the issue they had to decide. For these reasons, and notwithstanding some misgivings about the manner in which the jury were directed, I would reject these grounds of appeal. The infelicities have not given rise to any miscarriage of justice. I would reject these grounds of appeal.

152 It therefore becomes necessary to deal with the remaining grounds of appeal.

Grounds 8 and 9: joint criminal enterprise

153 On behalf of the appellant it was contended that the jury ought to have been given directions, in accordance with McAuliffe v The Queen [1995] HCA 37; 183 CLR 108, on the principles of joint criminal enterprise, and that the “acts or declarations” of Mr Tu which could be taken into account in the case against the appellant ought to have been identified.

154 The short answer to this submission is that, once the trials were separated, the Crown did not present a case based on joint criminal enterprise, and did not tender any “acts or declarations” of Mr Tu against the appellant. I would reject these grounds.

Grounds 10 and 11: circumstantial evidence

155 I have already noted that I found the reliance upon circumstantial evidence a little puzzling. The Crown case was that drugs were found in two premises owned or controlled by the appellant. She had some of the substitute material in her custody on arrest. That is not what I would ordinarily characterise as a circumstantial case. It is true that the appellant’s knowledge, the critical issue, in the absence of admissions by her, had to be proved by inference. It was contended that traditional directions concerning circumstantial evidence ought to have been given. In my opinion, this was not such a case. The jury were properly directed about the onus of proof, and about the single issue for determination. The substance of the directions was to that effect. I would reject these grounds of appeal.

Grounds 12 and 13: onus and standard of proof

156 In written submissions filed on behalf of the appellant the following submission was made:

“58. His Honour gave some general directions about the standard of proof, and then he went on to say:

‘Now what have you got to be satisfied about? Well, you have got to be satisfied about (sic) if you come to the conclusion that the accused is guilty. You have to be satisfied the Crown has proved all the necessary elements of the case.’ ...

And a little later ... he stated:

‘What are the necessary things the Crown have to prove before they can get a conviction?’

59. This is about as close as His Honour came to directing the jury that the onus of proof was on and remained on the Crown ...”

157 The “general directions” contained this:

“ ... And it is quite correct that you do not convict someone because you have a grave suspicion that there is something wrong or she must have been up to something; I think she was definitely up to something. That is not good enough. You must be satisfied beyond reasonable doubt before you can convict. It’s the highest form of proof in our system and all twelve of you have to be satisfied.”

158 Further, at the commencement of the trial, when he made his opening remarks, his Honour said:

“This is a criminal trial and in a criminal trial the Crown must prove its case in each of these two counts, these two charges alleged against the accused, beyond reasonable doubt.

You have probably heard that phrase many times ...

So you must be satisfied beyond reasonable doubt before you can convict.”

159 There were also written directions which opened with the onus and standard of proof in conventional terms. I would reject this ground of appeal.

Ground 14: the mental component of the element of possession

160 A direction was given during the course of the summing up to the jury in the following terms:

“And lastly, they have to prove, again beyond reasonable doubt that she knew of the existence of the drugs in the bag and the packages in her flat or she knew, it was likely that she knew, these drugs existed in them.”

161 The issue that was taken about this direction was the use of the words “it was likely that she knew ...”. It was submitted that this undermined the criminal standard of proof.

162 Reliance was placed upon the decisions of the High Court in Saad v The Queen [1987 ] HCA 14; 61 ALJR 243, Kural v The Queen [1987] HCA 16; 162 CLR 502, and Pereira v The Director of Public Prosecutions [1988] HCA 57; 63 ALJR 1 in support of this proposition. None of these cases assists the appellant. In Saad, Mason CJ, Deane and Dawson JJ said:

That is not to say that actual knowledge or awareness is an essential element of the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary inherent belief, falling short of actual knowledge, that the article comprised or contained a narcotic drug would obviously sustain an inference of intention.

mens rea

if it is proven beyond reasonable doubt that the accused was actually in possession of the drug and that he was aware, at the time, of the alleged commission of the offence, or the likelihood of the existence of the substance in question in his possession and of the likelihood that it was a narcotic drug.

163 In Pereira, the Court said:

164 In Kural, Mason CJ, Deane and Dawson JJ said:

“Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. .... Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. ...”

He Kaw Teh v The Queen

knew

165 I am conscious that there is a distinction between proving (beyond reasonable doubt) knowledge of the likelihood of the identity of the substance in question, and the reference in the direction of which complaint is made of the likelihood of knowledge. However, that phrase appeared in a sentence which itself contained a direction that the Crown had to prove beyond reasonable doubt that the appellant knew of the existence of the drugs in the bag and the packages in her flat. I do not think, in the circumstances, that that reference undermined the repeated directions concerning the standard of proof.

166 Anticipating such a response, senior counsel relied upon a passage in the decision of the High Court in Bartho v The Queen (1978) ALR 418; 52 ALJR 520, in the following terms:

“A judge may in the course of his summing up give directions which, if they stood alone, would be correct and sufficient, but it may nevertheless be concluded that there has been a misdirection when the summing up is viewed as a whole, because other passages might be understood by the jury as explaining or qualifying those passages which were correct in such a way as to weaken the force or distort or obscure the meaning of the latter.”

167 I am quite satisfied that the oblique reference to “it was likely that she knew” did nothing to obliterate the otherwise correct directions that had been given.

168 The complaint cannot be sustained. I would reject this ground of appeal.

ground 15

169 Ground 15 asserts an aggregation of errors, but none other than those with which I have already dealt. Since I do not accept that any of the errors for which the appellant contends have been made out, ground 15 also ought to be rejected.

Application for leave to appeal against sentence

170 The maximum penalty prescribed in relation to each offence of which the appellant was convicted is imprisonment for 25 years. In respect of count 1 the appellant was sentenced to imprisonment for 20 years, and on the second to imprisonment for 16 years, each sentence to commence on 14 May 2003. An overall non-parole period of 13 years and four months was specified.

171 At a separate trial before the same judge, Mr Tu was convicted on count 1, and on a further count of possessing prohibited imports, this being the large quantity of the drug found at his apartment. He was sentenced on the same day and in the same proceeding as the appellant. On each count he was sentenced to imprisonment for 25 years, also commencing on 14 May 2003. This was the maximum sentence available, although his Honour rejected a prosecution submission that the sentence ought to be at least partially cumulative which would have resulted in a total sentence in excess of 25 years. An overall non-parole period of 16 years and 7.5 months was specified.

172 There was evidence before the sentencing judge, which he appears to have accepted, that the street value of the drugs the subject of the first offence was in excess of $100 million, and the wholesale value between $25 million and $40 million.

173 The appellant gave evidence on the sentencing proceedings. Also provided to the sentencing judge was a psychological report dated 10 August 2004. From this the following emerges. The appellant was born in Shanghai on 15 June 1956. At the time of the offences she was a few weeks short of 47 years of age. She is the youngest of a family of five, her older siblings being brothers. The family was poor, but there appear to have been no major problems and her childhood was happy. She married at the age of 25 but this marriage ended in divorce only a few years later. She has one son as a result of the marriage. She migrated to Australia in 1990 and undertook a variety of forms of employment while she learned English. She developed an addiction to gambling.

174 Her son also migrated to Australia and visits her regularly. Her mother died in 1985. Her father, now aged 84, is alive and living in Shanghai.

175 The psychologist formed the view that she is now “very regretful” about her involvement in the offences and is ashamed and embarrassed. He formed the view that she would not again commit a crime of this nature.

176 There were some interesting aspects of the report, and of the appellant’s evidence on the sentencing procedure. The psychologist quoted the appellant (not verbatim) as explaining her pleas of not guilty as follows:

“I should say I helped because I helped him, I was involved in the crime but I cannot admit (to the) crime. I had no idea of the quantity. Though I helped him, I had no intention to commit the crime because I had no knowledge of the drugs. I did not plan the whole thing. I helped him to import the sample, but I did not know of this quantity of drugs. My role is totally different, therefore I cannot plead guilty.”

177 The appellant was cross-examined about this, and other passages in the report. She appears to have accepted, in general, that she was accurately recorded by the psychologist, and that she had been truthful with him.

178 At one point in her evidence on the sentencing proceedings she said:

“At the first instance I didn’t plead guilty because I didn’t know there were so many drugs involved. I got to know about it only the day – the next day on television.”

179 This was a reference to her having seen a news report of her arrest.

The remarks on sentence

180 The sentencing judge formed an unfavourable view of the appellant’s veracity. He had little before him on which to base any conclusions about the extent of her involvement in whatever organisation lay behind the importations. He, however, held that it was obvious that neither she nor Mr Tu could properly be regarded as the principal in the organisation; nevertheless both were actively involved in ensuring that they obtained possession of the drugs. The sentencing judge also took the view that the appellant’s foodstuff importing business was no more than a screen for the importation of drugs.

181 He assessed the appellant’s culpability, relative to that of Mr Tu, as being “less, although not markedly so ...”. The judge had heard all of the evidence in both trials, which put him in a strong position to make such an assessment. Nevertheless, given that it was the appellant’s company that was the vehicle for the importations, and the drugs were stored at her premises, the finding may have been a generous one.

182 The first complaint on the application for leave to appeal against the sentence concerns the asserted lack of parity with the sentence imposed on Mr Tu. It was argued that the evidence indicated that Mr Tu had a more important role, and that this was accepted by the sentencing judge; that the possession charge which he faced involved a significantly larger quantity of drugs (107 kilograms, compared with the 6.13 kilograms found in the appellant’s apartment); that Mr Tu had a prior criminal record, which the appellant did not; and that the appellant suffered from a pathological gambling problem which contributed to her offending.

183 The difficulty with the submission made on behalf of the appellant is that Mr Tu was in fact sentenced to a significantly longer term of imprisonment than she was – his head sentence in relation to the attempted possession charge was 25% longer than that imposed upon her; his non-parole period was more than 20% longer than that imposed upon her. In my opinion, this adequately reflects such distinctions as exist between the two. I would reject the parity ground of the application for leave to appeal against sentence. On the second count, her head sentence was significantly less, reflecting the quantity of drugs involved.

184 It was also argued that the sentence imposed was “unduly severe” and that error was demonstrated by his Honour having declined to find special circumstances or reasons for reducing the non-parole period below the conventional two thirds commonly imposed in relation to Federal offences. It was argued that the fact that this was the appellant’s first criminal conviction, that it was her first time in custody, that she had a son living alone in Australia, that her family, including her husband, lived in China, that she had strong prospects of rehabilitation and not re-offending, and a good work history, all pointed to a reduction in the proportion between the non-parole period and the head sentence.

185 These, in my opinion, are facts of little weight in a case as serious as this. The appellant was involved in the possession, or the attempted possession, of a vast quantity of an illegal drug. It was fitting that she be severely sentenced. I would grant leave to appeal against the sentences imposed but dismiss the appeal.

186 The orders I propose are:

1. appeal against convictions dismissed;

2. leave granted to appeal against the sentences;

187 BUDDIN J: I agree with Simpson J.

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22/12/2005 - - Paragraph(s)

Citations

R v Zhang [2005] NSWCCA 437

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58

White v Johnston [2015] NSWCA 18

Smith v Grant [2006] NSWCA 244

Director of Public Prosecutions (NSW) v JS [2025] NSWSC 1172

Cases Cited

21

Statutory Material Cited

5

Dinsdale v The Queen [2000] HCA 54

He Kaw Teh v The Queen [1985] HCA 43

KRM v The Queen [2001] HCA 11

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CITATION:	R v Anna Zhang [2005] NSWCCA 437 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16 September 2005
JUDGMENT DATE:	14 December 2005
JUDGMENT OF:	Basten JA at 1; Simpson J at 73; Buddin J at 187
DECISION:	Appeal against convictions dismissed; Leave granted to appeal against sentences, appeals dismissed.

CATCHWORDS:	EVIDENCE – s98 and s101 of the Evidence Act 1995 (NSW) – coincidence evidence – attempted importation of narcotics – possession of narcotics – whether evidence of importation admissible in relation to the count of possession and vice versa – whether two or more related events established under s98 – consideration of ‘related events’ – whether the evidence had significant probative value – whether substantial miscarriage of justice occasioned - EVIDENCE – standard of proof – whether reference in trial judge’s summing up to ‘it was likely that she knew’ undermined the standard of proof of beyond reasonable doubt
LEGISLATION CITED:	Criminal Appeal Act 1912 s6 Criminal Appeal Rules (NSW) Rule 4 Criminal Procedure Act 1986 s29(1), 29(3) Customs Act 1901 (Cth) Evidence Act 1995 s95, s 97, s98(1), s101(2), s136
CASES CITED:	Bartho v The Queen (1978) ALR 418; 52 ALJR 520 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Ellis v The Queen [2004] HCA Trans 488 He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523 House v The King [1936] HCA 40; 55 CLR 499 KRM v The Queen [2001] HCA 11; 206 CLR 221 Kural v The Queen [1987] HCA 16; 162 CLR 502 McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 Pereira v The Director of Public Prosecutions [1988] HCA 57; 63 ALJR 1 R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 R v Fletcher [2005] NSWCCA 338 R v Lockyer (1996) 89 A Crim R 457 R v Matthews; R v Williams [2004] NSWCCA 259 R v Nassif [2004] NSWCCA 433 Saad v The Queen [1987] HCA 14; 61 ALJR 243
PARTIES:	Crown - Regina Appellant - Anna Zhang
FILE NUMBER(S):	CCA 1125/2005
COUNSEL:	Mr G. Nicholson QC (Appellant) Ms W. J. Abraham QC (Respondent)
SOLICITORS:	Andrew Liu Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0961
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ