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Su v The King

Su v The King

Case [2023] NSWCCA 21 15 February 2023

Criminal Liability

Appeal

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Su v R [2023] NSWCCA 21
Hearing dates: 8 August 2022
Date of orders: 15 February 2023
Decision date: 15 February 2023
Before: Meagher JA at [1];
Button J at [117];
Wright J at [118]
Decision:
(1) Grant extension of time for application for leave to appeal.
(2) Grant leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
(3) Dismiss the appeal against conviction

Catchwords:
CRIME – appeals – appeal against conviction – where applicant found guilty of two counts of importing commercial quantity of border controlled precursor – where precursor concealed in packages of paintings consigned from Derby in United Kingdom to parcel lockers in Sydney opened in names other than applicant’s – where tendency evidence admitted of four additional consignments sent from Derby using name and identity other than applicant’s – whether admission of tendency evidence and way it was relied on at trial resulted in a miscarriage of justice – whether verdict unreasonable

Legislation Cited:
Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
Criminal Code (Cth), ss 5.2, 5.3, 5.4, 5.6, 300.2, 301.6(1), 307.11(1)
Criminal Code Regulations 2019 (Cth) reg 16, item 3
Criminal Procedure Act 1986 (NSW), s 161A
Evidence Act 1995 (NSW), ss 97(1)(b), 101(2), Sch 2
Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)

Cases Cited:
AK v R [2022] NSWCCA 175
Bektasovski v R [2022] NSWCCA 246
Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808
Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
Greenaway v R [2021] NSWCCA 253
Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Falzon (2018) 264 CLR 361; [2018] HCA 29
R v Fletcher [2005] NSWCCA 338; (2015) 156 A Crim R 308
R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281
Stephens v R [2021] NSWCCA 152
Stephens v R [2022] HCA 31; (2022) 96 ALJR 871
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Category: Principal judgment
Parties: Dong Mo Su (Applicant)
Rex (Respondent)
Representation:
Counsel:

K Averre (Applicant)
R Ranken (Respondent)

Solicitors:
Smythe Wozniak Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2019/105219
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

18 December 2020

Before:

Herbert DCJ

File Number(s):

2019/105219

Judgment

MEAGHER JA: The applicant Mr Dong Mo Su seeks leave to appeal from his convictions on 15 October 2020…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Su v The King

Details

AGLC: Su v The King [2023] NSWCCA 21
Case: [2023] NSWCCA 21
Decision Date: 15 February 2023

CaseChat Overview and Summary

In the case of Su v The King, the applicant was found guilty of two counts of importing a commercial quantity of a border-controlled precursor. The precursor was concealed in packages of paintings consigned from Derby in the United Kingdom to parcel lockers in Sydney, opened under names other than the applicant's. The court heard that there were four additional consignments sent from Derby using a different name and identity than the applicant's. The applicant appealed against the conviction, arguing that the admission of tendency evidence and the way it was relied upon at trial resulted in a miscarriage of justice and that the verdict was unreasonable.

The legal issues before the court were whether the admission of tendency evidence and the manner in which it was relied upon at trial resulted in a miscarriage of justice and whether the verdict was unreasonable. The court considered whether the tendency evidence was relevant and whether its admission and the way it was relied upon at trial impacted the fairness of the trial and the reliability of the verdict.

The court found that the tendency evidence was relevant and its admission did not result in a miscarriage of justice. The court held that the trial judge had properly directed the jury on the proper use of the tendency evidence, and the jury had been properly alerted to the dangers of convicting based on the evidence. The court also held that the verdict was not unreasonable, as there was sufficient evidence to support the conviction. The appeal was dismissed.

The court did not make any further orders. The applicant's appeal against conviction was dismissed, and the original conviction and sentence stood.

Orders