Thi Hong Hanh Duong v The Queen

[2017] VSCA 78

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0075

THI HONG HANH DUONG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 April 2017
DATE OF JUDGMENT:	4 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 78
JUDGMENT APPEALED FROM:	DPP v Duong (Unreported, County Court of Victoria, Judge Douglas, 8 March 2016)

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CRIMINAL LAW – Appeal – Conviction – Attempting to possess a commercial quantity of a border controlled drug – Interruption of defence opening by trial judge – Whether interruptions unwarranted – Function of defence response – Purpose of defence response – Interruptions not unwarranted – Criminal Procedure Act 2009, s 225.

CRIMINAL LAW – Appeal – Conviction – Attempting to possess a commercial quantity of a border controlled drug – Circumstantial case – Whether conviction unreasonable or not supportable having regard to the evidence – Whether jury could exclude reasonable hypothesis consistent with innocence – Not reasonably arguable that conviction unreasonable or not supportable having regard to the evidence – Leave to appeal refused – Criminal Procedure Act 2009, s 276(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Haines & Polites
For the Respondent	Ms K Breckweg	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA

BEACH JA

McLEISH JA:

1. On 8 March 2016, following a six-day trial in the County Court, the applicant was convicted of one charge of attempting to possess a commercial quantity of a border controlled drug (cocaine), contrary to ss 11.1 and 307.5 of the Criminal Code 1995 (Cth). Following a plea hearing, the applicant was sentenced on 5 April 2016 to 10 years’ imprisonment with a non-parole period of seven years.[1]

   [1]The maximum term of imprisonment for attempting to possess a commercial quantity of a border controlled drug is life imprisonment.

1. The applicant now seeks leave to appeal against her conviction.  The applicant’s proposed grounds of appeal are:

1.A substantial miscarriage of justice has occurred because of interruptions by the trial judge during counsel’s reply on behalf of the applicant.

2.The verdict is unreasonable or cannot be supported having regard to the evidence.

The Crown case

1. The background circumstances of the Crown case were not in dispute at trial.  Those facts may be briefly summarised as follows.

1. On 15 and 16 December 2014, three FedEx parcels were detected by customs officials after having arrived in Australia from Colombia.  Preliminary testing indicated the possible presence of cocaine.  All three parcels were addressed to the same person at the same address — ‘Anna Duong’ at 4B Emily Street, St Albans.  Each of the parcels contained a cardboard box with heat sealed plastic bags inside, each of which contained a black crystalline substance.  This substance was later analysed as containing approximately 50 per cent pure cocaine in amounts as follows:

Parcel	Gross weight	Pure weight
Parcel 1	20.6 kilograms	10.9 kilograms
Parcel 2	21.2 kilograms	11.8 kilograms
Parcel 3	20.5 kilograms	11.4 kilograms

1. On 17 December 2014, an Australian Federal Police (AFP) member purporting to be a delivery driver attended 4B Emily Street.  On this occasion no-one was at home.

1. The following day, AFP member Keith Webb-Johnson attended the address purporting to be a courier delivery driver.  The applicant opened the door.  Ultimately, Mr Webb-Johnson spoke, by telephone, with a person purporting to be Anna Duong, the applicant’s sister, regarding the delivery process.   Mr Webb-Johnson then said that photo identification would be required in order for the parcel to be delivered.  The applicant supplied her Vietnamese passport to indicate that she was to accept the consignment.  Mr Webb-Johnson then told the applicant that he would require her assistance to move the boxes from the delivery vehicle.  The applicant was arrested at the delivery vehicle.

1. A search warrant was executed.  Two other people were present at the house:  Van Ho, who it was later established was a tenant of the house and Long Tran.  Ms Ho told police that the applicant, who did not live at the house, had asked for some parcels of clothing to be delivered to her house for the applicant’s sister.  During the search, police located an iPhone believed to belong to the applicant and an iPad belonging to Ms Ho which confirmed some of the things Ms Ho had told police.  Text messages on the iPhone revealed discussions between the applicant and the person named ‘Anna Duong’ referring to a person known as ‘H’, and providing instructions on how to take delivery of the parcel, what the applicant should say and how she should act.  Facebook messages on the iPad revealed discussions between the applicant and Ms Ho, showing that the applicant was aware of an attempt to deliver the parcels when nobody was at home.

1. At trial, the agreed English translation of the text messages passing between the applicant and her sister was tendered as follows:[2]

   [2]Words in bold type in this table were in English in the original texts.

Date	Time  (AEDT)		Sender		Receiver		Message
17/12/14	11:12:56 pm		Thi Hong Hanh DUONG		Anna DUONG		What’s happening tomorrow
17/12/14	11:16:58 pm		Anna DUONG		Thi Hong Hanh DUONG		Like I (h) said. Just go to Van’s place at 1 o’clock. Ask if she’s hme.[3] Make up some story so she not suspect. If the delivery guy come don’t say you’re Anna Duong. He asks who you are then say a cousin. Anna is at work so asked me to collect for her. If he not ask then no worries. If he not believe then take your fone hanh and call me (h) so I (h) can tlk[4] to him.
17/12/14	11:26:18 pm		Thi Hong Hanh DUONG		Anna DUONG		Are you able to ask Van to receive
17/12/14	11:26:23 pm		Thi Hong Hanh DUONG		Anna DUONG		Van said she’d B hme 2moro
17/12/14		11:27:55 pm		Anna DUONG		Thi Hong Hanh DUONG		Yeah. No. Absolutely not. Take time off wk[5] and accept 4 me. Cannot let Van do it. It’s so heavy I think have 2say to Van it’s cosmetics you ordered to sell. It’s 60kg
17/12/14		11:28:58 pm		Thi Hong Hanh DUONG		Anna DUONG		Why not
17/12/14		11:29:04 pm		Thi Hong Hanh DUONG		Anna DUONG		She not gonna open and have a look
17/12/14		11:29:57 pm		Anna DUONG		Thi Hong Hanh DUONG		No way.  She’ll suspect.  Then she tells Linh Huy and that’s the end.
17/12/14		11:30:52 pm		Thi Hong Hanh DUONG		Anna DUONG		But when I accept she’ll C it anyway
17/12/14		11:31:32 pm		Anna DUONG		Thi Hong Hanh DUONG		It’s very messy no joking
17/12/14		11:47:20 pm		Anna DUONG		Thi Hong Hanh DUONG		Remember 2moro say exactly as I (H) instructed
17/12/14		11:48:01 pm		Anna DUONG		Thi Hong Hanh DUONG		As long as you get out 2moro come to Syd 4good Hanh
17/12/14		11:55:48 pm		Anna DUONG		Thi Hong Hanh DUONG		Silly monkey. Remember take care of the other matter tomorrow so it ends well. Remember to tell Van it’s cosmetics and clothes I (h) ordered for U (Hanh) to sell ok. Do a good job and will be handsomely rewarded. Don’t count your chicken B4 they’re hatched ok
17/12/14		11:56:27 pm		Thi Hong Hanh DUONG		Anna DUONG		What reward are you talking about.  If tomorrow I’m asking for a day and I am told to be off permanently.  Then that’s nice.
17/12/14		11:57:44 pm		Anna DUONG		Thi Hong Hanh DUONG		Then quit. Come to syd. No worry
18/12/14		12:09:50 am		Anna DUONG		Thi Hong Hanh DUONG		K kicked out then come to Syd. NVM[6] go to sleep so you’re in the spirit tomorrow for a good performance
18/12/14		3:33:49 pm		Anna DUONG		Thi Hong Hanh DUONG		NVM hang in there. Already waited all this time.

[3]Home.

[4]Talk

[5]Work.

[6]Never mind.

18/12/14	3:34:08 pm	Thi Hong Hanh DUONG	Anna DUONG	Till wat time
18/12/14	3:34:24 pm	Thi Hong Hanh DUONG	Anna DUONG	Just sit here and wait
18/12/14	3:34:28 pm	Thi Hong Hanh DUONG	Anna DUONG	IM all annoyed
18/12/14	3:35:42 pm	Anna DUONG	Thi Hong Hanh DUONG	NVM hang in there. IM anxious myself
18/12/14	3:40:10 pm	Thi Hong Hanh DUONG	Anna DUONG	It’s raining hard now

1. Following her apprehension by the AFP, the applicant was interviewed at AFP headquarters with the assistance of a Vietnamese interpreter.  She told police that she had no idea what she was meant to be collecting.

1. The prosecution case was a circumstantial one.  The prosecution case was that the applicant knew what was in the parcels and knew, believed or was aware that the consignment contained a border controlled drug that she attempted to possess.  The prosecution case was that the text messages between the applicant and her sister showed careful and specific instructions regarding what the applicant should say and how she should act, and that these took place because those involved knew that the consignment was a border controlled drug.  There was no evidence of any financial reward for the applicant.  The prosecution position was that the text messages were ‘totally inconsistent’ with a delivery of clothes and consistent with concern about a very valuable package being delivered.

1. The defence case was that there was reasonable doubt as to whether the applicant knew what was in the consignment or believed that there were drugs in the consignment.  The defence case was that there were other alternative explanations consistent with the applicant’s innocence.  The defence case was that the communications were strongly suggestive of someone who did not know or believe that there were drugs within the packages.

The trial

1. At trial, the prosecution called evidence from Mr Webb-Johnson, two other AFP officers (Fiona Cleeland and Luke Gregory), and the tenant of the premises, Ms Ho.  The applicant did not call any witnesses or give evidence at trial.

1. The issue at trial was whether the prosecution could prove beyond reasonable doubt that the applicant knew or believed that the consignment she was to collect contained border controlled drugs.

Ground 1:  the applicant’s response to the prosecution opening

Background to ground 1

1. Ground 1 asserts that a substantial miscarriage of justice occurred because of interruptions made by the trial judge during the course of the applicant’s counsel’s response to the prosecution opening.

1. Section 225 of the Criminal Procedure Act 2009 (‘the Act’) requires counsel for an accused to present a response to the prosecution opening at the commencement of a trial. Section 225 provides:

225     Response of accused to prosecution opening

(1)In all trials before a jury, immediately after the prosecutor's opening, the accused—

(a)       if represented by a legal practitioner, must present;

(b)       if not represented by a legal practitioner, may present—

to the jury the response of the accused to the prosecution opening prepared in accordance with Part 5.5.

(2)If documents have been served and filed by the defence under Part 5.5, the accused is restricted to the matters set out in those documents when presenting the response of the accused to the prosecution opening, unless the trial judge considers that there are exceptional circumstances.

(3)For the purposes of subsection (2), a change of legal practitioner does not constitute exceptional circumstances.

(4)Despite subsection (2), the accused is not restricted to a verbatim presentation of the response of the accused to the summary of the prosecution opening as served and filed under Part 5.5.

(5)The trial judge may limit the length of the response of the accused.

1. Prior to trial, the prosecution filed and served a written prosecution opening. Pursuant to s 183 of the Act[7] the applicant filed a written response.  In her written response, the applicant identified the issues in dispute as follows:

1.        The accused denies attempting to possess a substance.

2.The accused denies being reckless as to whether the substance was a border controlled drug.[8]

[7]Section 183 of the Act is contained in pt 5.5.

[8]For completeness, we note, however, s 11.1(3) of the Criminal Code specifies the fault element in respect of each element of the offence of attempting to commit an offence as intention and knowledge.

1. At trial, the prosecutor opened the Crown case relatively concisely.  The prosecutor’s opening occupied some 12 pages of transcript.

1. Counsel for the applicant then commenced his response.  Counsel’s response commenced with some introductory remarks, before he said:

Really, in a nutshell, what this trial will come down to is a handful of text messages.  It’s not in dispute that Ms Duong went over to St Albans on behalf of her sister to collect some packages.  She was sent over there, she went to collect them.  What is in dispute, really, is what was her intention.  What was in her mind when she went there?

1. The applicant’s counsel’s response then continued on, until counsel said:

The central issue in this trial is whether or not the prosecution can prove beyond reasonable doubt that Hanh Duong attempted to possess the packages, intending or knowing that they contained a substance that was a border controlled drug. 

1. Having identified what was said to be the central issue, the applicant’s counsel went on, subsequently identifying three questions:  first, whether his client attempted to possess the packages, knowing or believing that they contained a substance that was a border controlled drug;  secondly, whether the jury could be satisfied of that fact beyond reasonable doubt;  and thirdly, whether, in the circumstances, the allegation that his client went to St Albans to collect the packages, knowing or believing that they contained a drug, was the only reasonable explanation for her conduct, or whether an alternative theory was available on the evidence that could not be excluded.

1. The applicant’s counsel then proceeded to tell the jury that these questions were fundamental and would help the jury focus on what was important as the jury started to come to grips with the evidence. 

1. A little later on, counsel for the applicant reminded the jury that his client had pleaded not guilty, and said:

On the strength of that plea, her plea, her position is this, she didn’t know there was substances or there was a substance in those packages.  She didn’t know that there were border controlled drugs in those packages.  She didn’t know that there was cocaine in those packages.  She didn’t intend to possess cocaine.  She didn’t attempt to possess cocaine and she didn’t go to St Albans to collect cocaine.  It follows that she’s not guilty of the offence charged.

1. The applicant’s counsel continued with more discussion of the evidence.  During the course of this, the prosecution case was described as ‘a theory’.  As to the text messages relied upon by the prosecution, counsel for the applicant said that he wanted to say ‘a couple of things about the way in which you [the jury] might approach that evidence’.  Counsel then proceeded to tell the jury that their task was an intellectual exercise and that the jury should not engage in speculation.  He then said:

Let me deal with the first point.  In listening to and reading the messages, it’s important to bear in mind that your task in this trial is very much an intellectual exercise.  When you rationally assess the evidence in a dispassionate way and the assessment that you make isn’t driven by emotions such as prejudice, isn’t about prejudging the issues.  It’s fundamentally about fairness.  It’s about keeping an open mind and not jumping to conclusions.

You decide the case on the evidence alone, as you’ve been told and it follows that if you think about it, concepts such as prejudgement like prejudice and suspicion and the like, those sorts of mental processes or emotions, they’re not evidence and you must try to put those sorts of factors out of your mind.  But that, ladies and gentlemen, is easier said than done.  We are all human and a large part of the way that we think - - - .

1. It was at this point that counsel for the applicant was interrupted by the trial judge and told that ‘this is not a final address’.  The following exchange then occurred:

COUNSEL:     I know, your Honour, but - - -

HER HONOUR:        The rules only allow for you and I give counsel leeway as to the issues in the case.  Now I think you are trespassing a little bit into final address.

COUNSEL:     Well your Honour didn’t touch on these issues about - - -

HER HONOUR:        No.

COUNSEL:     - - - circulation and about the intellectual exercise.

HER HONOUR:        I think I did but your task at this stage, the rules allow only a short opening as to the — what’s in issue.  Now, I give people leeway but perhaps if you can just truncate it so we can get to the issue.

COUNSEL:     If I can finish this point then.

HER HONOUR:        Yes.  Good.

1. Counsel for the applicant then continued for a further two pages of transcript, in which he said to the jury that ‘we’re all human and a large part of the way that we think in ordinary life is based on that sort of preconception’ before again talking about prejudice, suspicion, emotions and speculation.  At the conclusion of this part of his response, counsel said:

But ladies and gentlemen, there’s one question in particular that you might like to continue — consider, I should say, and that’s this:  If this was an attempt to possess over 30 kilograms of cocaine, what was Ms Duong going to get out of accepting those packages?

1. At this point, the judge interrupted counsel for the second time, saying:

[Counsel], you’ve crossed the line.  I don’t make the rules.  I follow the rules of process and procedure, and it is a short reply giving intention — giving the issues.  This is a final address.  And I think you’ve made the issues clear.  And I’ve given you a lot of leeway.  No, I think that will do you.  Is there anything — I can’t think of anything you haven’t said, but is there any important matter that you want to tell the jury?

1. Counsel for the applicant said that there was a point that he particularly wanted to make.  The judge then permitted him to make that point.  Counsel then made a further point about financial reward and whether the applicant was just doing a favour and was enthusiastic.  Counsel then concluded his response:

Now, ladies and gentlemen.  At the conclusion of this trial I’ll have the opportunity to speak to you again, and what I’ll do is then return to those questions that I’ve posed, the ones I’ve been able to advance before you, and we’ll see how some of those questions might be answered.  If it please the court.

1. Following the applicant’s counsel’s response, the jury was discharged for the day.  After the jury was discharged, there was an exchange between the applicant’s counsel and the judge.  In this exchange, the applicant’s counsel complained about the judge’s interruptions, saying that in 10 years at the Bar, he had never been interrupted when delivering an opening address.  Counsel for the applicant complained that the judge had ‘infected’ the jury against him, suggesting that counsel did not know the rules and procedures of the Court.  Counsel’s submissions became less edifying (described by the judge as ‘insulting’) before he concluded that he would consider overnight whether to make an application to discharge the jury based upon the judge’s interruptions.

1. On the afternoon of the following day, the applicant’s counsel applied for the jury to be discharged.  The basis of the application was, as foreshadowed, the two interruptions that the judge had made during the applicant’s counsel’s opening.  The judge heard argument on the discharge application, and then reserved her decision.

1. On the following morning, the judge dismissed the application to discharge the jury.  The judge gave detailed reasons for not accepting that the relevant test (high degree of need for discharge) had been established.

Applicant’s submissions

1. The applicant submitted that her trial counsel’s response, given pursuant to s 225 of the Act, was a ‘model defence reply’. It was submitted that the response did not breach either s 225 of the Act or ‘the legitimate bounds of advocacy in the reply’. In the circumstances, it was submitted that the judge was wrong to interrupt the reply.

1. Secondly, it was submitted that, ‘even allowing for the possibility that counsel went too far in the defence reply, the multiple [we interpolate, two] interventions by the trial judge and the nature of those interruptions were beyond the pale’.

1. Thirdly, it was submitted that the adverse impact of the interruptions was ‘compounded and heightened to an unacceptable level by the trial judge saying what she said in the presence of the jury’.  In support of this contention it was submitted that, in effect, the applicant’s trial counsel had been accused of acting in breach of the rules of procedure and practice, and that this was ‘simply unacceptable’ and grossly unfair to the applicant’s prospects of a fair trial.

1. Fourthly, it was submitted that no direction could cure the prejudice to the fair trial that was caused by ‘the unwarranted and unjustified interruptions by the trial judge’.

1. Fifthly, it was submitted that the applicant’s trial was a ‘closing address’ case, where the authenticity and integrity of counsel was ‘paramount’.

1. Finally, it was submitted that, because the trial was at an early stage and no evidence had been adduced, balancing questions of inconvenience against a demonstrable risk of a miscarriage of justice meant that the only proper and sensible course was the discharge of the jury.

The respondent’s submissions

1. The respondent submitted that the interruptions by the trial judge were not, in fact, unwarranted. In support of that submission, the respondent said that, while the defence reply commenced with an articulation of the issues in dispute in the trial, defence counsel then proceeded, inappropriately, to address the jury in terms akin to making a closing address. Contrary to the applicant’s submissions, the respondent contended that the defence response went beyond what was permitted by s 225 of the Act, and legitimate bounds of advocacy.

1. The respondent submitted that the judge’s interruptions were, in the circumstances, appropriate, and did not constitute ‘excessive interference’.  Moreover, it was submitted that there was no high degree of need for the jury to have been discharged.

Resolution of ground 1

1. Notwithstanding the very able and full submissions made this morning by Mr Edney,[9] we are not persuaded that there is anything in ground 1.  While different judges may have permitted the applicant’s trial counsel to have delivered his response to the prosecution opening without interruption, we see no error in the judge seeking to curtail trial counsel’s response by confining it to the issues in the way that she attempted to do.  The response was repetitive and descended into argument more appropriate for final addresses.  The judge was entitled to interrupt and limit the length of the response in the way that occurred in this case.

   [9]Who was not the applicant’s counsel at trial.

1. Moreover, we think there is nothing in the point that the judge could have stopped the response and sent the jury out so as to debate the matter in the absence of the jury.  The judge’s interruptions were courteous and did not cast any relevant or inappropriate aspersion on counsel.  This was a very different case from that described by this Court in Piccolotto v The Queen.[10]

   [10][2015] VSCA 143 (‘Piccolotto’).

1. It follows from these conclusions, that the judge did not err when she rejected the applicant’s application to discharge the jury.  Indeed, it would have been wrong for her Honour to have acceded to that application.  There was no ‘high degree of need’ that required the jury to be discharged.  If the applicant’s trial counsel was concerned that his reputation had in some way been besmirched by the trial judge’s interruptions, so that his credibility with the jury had been significantly impugned to the detriment of his client, then he could have sought an appropriate direction in order to cure any prejudice that might have been occasioned.  The fact that he did not do so reinforces our conclusion that there was no such prejudice.

1. Ground 1 must be rejected.

Ground 2:  whether the verdict was unreasonable

Applicant’s submissions

1. The applicant submitted that, ‘on the basis of the entirety of the evidence, the jury could not exclude the following reasonable hypothesis consistent with innocence:  that the applicant did not have knowledge or a belief that the consignment contained a border controlled drug’. 

1. In support of that submission, the applicant identified five matters which she said pointed towards ‘such an innocent hypothesis — and which the prosecution on the basis of the evidence adduced at trial could not exclude — that meant the jury should have had a reasonable doubt about the applicant’s guilt’.  The five matters were then identified as follows:

(a)the critical text messages between the applicant and her sister on 17 December 2014 when her sister said ‘do a good job and we’ll be handsomely rewarded’ and her response ‘what reward are you talking about’;

(b)attendance at the house on the basis of her sister’s instructions to await the delivery and the failure to implement any strategies to avoid detection and the fact that at no stage did she ever hold herself out to be someone other than who she, in fact, was, told against her guilt;

(c)representations to [Ms Ho] that the applicant told her that her sister had ordered clothes and that they were inside the parcels;

(d)record of interview when asked directly about her knowledge of the contents of the consignment her categorical denial;

(e)no prior convictions at all.

Respondent’s submissions

1. The respondent submitted that an analysis of the circumstantial evidence adduced at trial demonstrated that there was no sound basis for concluding that the jury must have had a reasonable doubt.  In support of this submission, the respondent pointed to the following matters:

·the delivery was to an address to which the applicant was familiar (having previously resided at that address) but did not currently live;

·the parcels were addressed to Anna Duong at this address;

·the applicant took receipt of the packages;

·in her record of interview the applicant admitted Anna was her sister and the parcels were for her;

·text messages between the applicant and Anna discussed the delivery of ‘60kg’ (the approximate weight of the parcels), what to tell Ho if she asked questions (the parcels were a delivery of clothes/cosmetics), what to tell the delivery driver if he asked for Anna, and that the applicant was to be rewarded;

·Facebook messages extracted from Ho’s iPad revealed discussions with the applicant (commencing 15 December 2014).  The applicant informed Ho a parcel for Anna would be arriving and arranged to be there to collect it.  These messages also showed the applicant had awareness of an attempt to deliver the parcels on 17 December 2014 when no-one was home;

·the applicant was given specific instructions by Anna the night before delivery.  The instructions were too specific for them to relate to the collection of just a delivery of clothing;

·Anna asked the applicant to ‘go to sleep so you’re in the spirit tomorrow for a good performance’.  The applicant didn’t question her as to why she needed to put on a good performance;

·the applicant was told she needed to be present for delivery even though she didn’t live there and Ho had agreed to collect the parcels.  The applicant clearly did not want to be there — telling Anna that the house was filthy — but remained as she knew the parcels were important;

·the applicant was told of the need to make up a story so Ho didn’t suspect, and to tell her that the parcels contained clothes or cosmetics that Anna ordered over the internet whilst she lived at the address.  The applicant never questioned what Ho might suspect;

·the applicant was told by Anna that the parcels were so heavy Ho couldn’t collect them.  That she must tell Ho that they were cosmetics if questioned, and that if Ho suspected what they were, and told ‘Linh Huy’, ‘that [would be] the end’.  The applicant never questioned her as to what she was talking about;

·whilst the applicant was waiting for the parcels to arrive, Anna told her she was anxious.  The applicant never asked her why she was anxious or what she was anxious about.  It is implausible that Anna was anxious about the delivery of clothes or cosmetics.

Resolution of ground 2

1. In ground 2, the applicant contends that the verdict of the jury is unreasonable or could not be supported by the evidence.  The principles to be applied, where it is argued that a verdict is unreasonable or is not supported by the evidence, are well known.  They were recently summarised by Kyrou and Kaye JJA in Mejia v The Queen:[11]

The ground of appeal relied on is based on s 276(1)(a) of the Criminal Procedure Act 2009, namely, that the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence.  The principles, applicable to such a ground, have been outlined in a number of cases since the decision of the High Court in M v The Queen in 1994, including in R v Hillier, Libke v The Queen and SKA v The Queen.  Most recently they were restated by the High Court in R v Baden-Clay.

In order to establish the ground, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charge on which he was convicted.  It is not sufficient merely to show that there was material which might have led the jury to entertain a reasonable doubt about the applicant’s guilt.  Rather, the critical question is whether, on the evidence, that the jury must (as distinct from might) have entertained a doubt about the guilt of the applicant.  Ordinarily, in that respect, a doubt experienced by an appellate court may constitute a doubt which the jury ought also to have considered.  However, it is important to bear in mind that the jury has the primary responsibility of determining guilt or innocence, and that in that respect the jury enjoys a substantial advantage in seeing and hearing the evidence as it is given in the atmosphere of the criminal trial, which is an advantage not shared by an appellate court.  Where the Court of Appeal entertains a doubt about the guilt of the accused, the Court may only conclude that no miscarriage of justice has occurred where the jury’s advantage, in seeing and hearing the evidence, is capable of resolving that doubt.[12]

[11][2016] VSCA 296 (‘Mejia’).

[12]Ibid [139]–[140] (citations omitted).

1. The applicant submits that it was not open to the jury to exclude the reasonable possibility that she had no knowledge or belief that the packages contained a border controlled drug.  The applicant identifies five matters which it is said should have compelled the jury to have a reasonable doubt about her guilt.  These submissions must be rejected.

1. None of the matters relied upon by the applicant (either individually or collectively) required the jury to entertain a reasonable doubt about the applicant’s guilt.  The text words ‘What reward are you talking about’ were capable of being interpreted by the jury as not inconsistent with guilt — the words, on one view, being no more than an indication that the precise terms of a reward had not been agreed.  In any event, picking an individual text and isolating it from the rest of the evidence (or even the bulk of the evidence) does not assist the applicant in the face of the evidence that was the balance of the prosecution case.

1. While the five matters pointed to by the applicant were matters to be weighed in the balance in determining whether the prosecution had met its burden of proving the case beyond reasonable doubt, and may even be accepted as telling against a conclusion that the applicant was relevantly involved, they were not such as to amount to an impediment to a conviction in this case.  Indeed, when one examines the whole of the evidence, one is left with the impression of a relatively strong Crown case;  one which it was well open for the jury to accept.

1. Ground 2 must therefore be rejected.

Conclusion

1. The application for leave to appeal against conviction will be refused.

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