R v Zhang

Case [2005] NSWCCA 437


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.

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AGLC
R v Zhang [2005] NSWCCA 437
Case
[2005] NSWCCA 437
Decision Date

CaseChat Overview and Summary

The case of R v Zhang was heard in the Supreme Court of New South Wales, where the respondent, Zhang, was charged with two counts: the attempted importation of narcotics and the possession of narcotics. The central issue before the court was whether evidence relating to the attempted importation could be admissible in relation to the count of possession and vice versa, under sections 98 and 101 of the Evidence Act 1995 (NSW). Specifically, the court needed to determine if the two events were related and if the evidence had significant probative value, while also considering whether admitting such evidence could occasion a substantial miscarriage of justice.

The court addressed these issues by examining the nature of the events and their relationship. It was established that the attempted importation and possession of narcotics were part of a series of related events, satisfying the criteria under section 98. The court further evaluated the probative value of the evidence, concluding that it was significant in establishing the context and circumstances surrounding the charges. Additionally, the court considered the potential for a miscarriage of justice and determined that the benefits of admitting the evidence outweighed any prejudicial effects. Finally, the court examined the trial judge's summing up, finding that the reference to "it was likely that she knew" did not undermine the standard of proof required for criminal cases, which is beyond reasonable doubt.

The Supreme Court ultimately upheld the convictions, finding that the evidence of the attempted importation was admissible in relation to the possession charge and vice versa. The reasoning provided ensured that the probative value of the evidence was properly balanced against the risk of a miscarriage of justice. The final orders of the court were to confirm the convictions on both counts, with no appeal against conviction or sentence permitted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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