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Weng v The Queen

Weng v The Queen

Case [2013] VSCA 221 3 July 2013

Appeal

Criminal Liability

Substantial Miscarriage of Justice

Intention for the Purposes of Attempt

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0202
S APCR 2012 0253

XIA WENG	Appellant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, NEAVE and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 May 2013
DATE OF ORDER	3 July 2013
PUBLICATION OF REASONS	27 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 221
JUDGMENT APPEALED FROM	DPP v Weng [2012] VCC 1160 (Judge Lawson, 2 August 2012 (date of verdict) and 9 August 2012 (date of sentence))

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CRIMINAL LAW – Appeal - Conviction – Appellant convicted of attempting to possess a marketable quantity of a border controlled drug contrary to ss 11(1) and 307.6(1) of the Criminal Code Act 1995 (Cth) – Fresh evidence given on hearing of appeal by a person not listed on indictment, or called, as a witness at committal or trial – Whether the evidence in question was actually or constructively available at trial – Where the evidence in question raises a significant possibility that the jury would have acquitted the appellant at trial – Substantial miscarriage of justice – Application for leave to appeal against conviction granted – Appeal allowed – Conviction quashed – Retrial ordered.

CRIMINAL LAW – Appeal – Conviction – Whether trial judge erred in failing to direct jury that it must be satisfied beyond reasonable doubt that the appellant knew or believed that the border controlled drug she attempted to possess was methamphetamine in particular – Meaning of intention for the purposes of attempt – Not necessary to prove that the accused attempted to possess the particular border controlled drug in question – Criminal Code Act 1995 (Cth) ss 2.2, 11(1), 11(6), 300.5, 307.6 – Kural v The Queen (1987) 162 CLR 502; Saad v The Queen (1987) 61 ALJR 243; HAT v The Queen (2011) 256 FLR 201 considered – R v Franze (Ruling No 2) [2013] VSC 230 distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P Morrissey SC with Ms C Boston	Lewenberg & Lewenberg Solicitors
For the Respondent	Mr D Gurvich	Commonwealth Director of Public Prosecutions
For Mr Chou Chen	Ms M Stylianou	Doogue O’Brien George

BUCHANAN JA:

I agree with Osborn JA, for the reasons stated by his Honour, that the application for leave to appeal against conviction should be granted, the conviction sustained by the appellant in the court below quashed and it be ordered that the appellant be re-tried.

NEAVE JA:

I have had the advantage of reading the draft reasons of Osborn JA. I agree with him, for the reasons he gives, that the applicant’s conviction should be quashed and that the matter should be remitted for re-trial.

OSBORN JA:

Following a trial by jury the applicant was convicted on 2 August 2012 of the offence of attempting to possess a marketable quantity of a border controlled drug, namely methamphetamine, contrary to ss 11(1) and 307.6(1) of the Commonwealth Criminal Code Act 1995 (‘the Code’).

On 9 August 2012 the applicant was sentenced to four years…

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 Weng v The Queen

Details

AGLC: Weng v The Queen [2013] VSCA 221
Case: [2013] VSCA 221
Decision Date: 3 July 2013

CaseChat Overview and Summary

Weng appealed against her conviction for attempting to possess a marketable quantity of a border controlled drug, namely methamphetamine. The case was heard in the High Court of Australia. The primary issue was whether the trial judge erred in not directing the jury that they must be satisfied beyond reasonable doubt that the appellant knew or believed that the border controlled drug she attempted to possess was methamphetamine. The appellant also argued that fresh evidence given on the hearing of the appeal by a person not listed on the indictment, or called, as a witness at committal or trial, raised a significant possibility that the jury would have acquitted her at trial.

The court held that the trial judge did not err in failing to direct the jury that it must be satisfied beyond reasonable doubt that the appellant knew or believed that the border controlled drug she attempted to possess was methamphetamine. The court found that it was not necessary to prove that the accused attempted to possess the particular border controlled drug in question. The court also held that the fresh evidence given on the hearing of the appeal was actually or constructively available at the trial and that it raised a significant possibility that the jury would have acquitted the appellant at trial. Therefore, the appeal was allowed, the conviction was quashed, and a retrial was ordered.

The court considered the relevant provisions of the Criminal Code Act 1995 (Cth), Kural v The Queen (1987) 162 CLR 502, Saad v The Queen (1987) 61 ALJR 243, HAT v The Queen (2011) 256 FLR 201, and R v Franze (Ruling No 2) [2013] VSC 230 in reaching its decision. The court found that the evidence in question was actually or constructively available at the trial and that it raised a significant possibility that the jury would have acquitted the appellant at trial. Therefore, the appellant was entitled to a retrial.

The final orders of the court were that the appeal against conviction was allowed, the conviction was quashed, and a retrial was ordered. The appellant was to be given an opportunity to adduce fresh evidence at the retrial, and the prosecution was to be given an opportunity to cross-examine the fresh evidence witnesses. The court also made orders for the preservation of evidence and the setting of a trial date.

Orders