Su v The King

Case [2023] NSWCCA 21


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

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

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Su v The King [2023] NSWCCA 21
Case
[2023] NSWCCA 21
Decision Date

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

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

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