Legal Research
Cases
Wu v The King

Wu v The King

Case [2025] VSCA 4 13 February 2025

Appeal

Conviction

Miscarriage of Justice

Jury Directions

Language Interpretation

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0242

LI QING WU	Applicant
v
THE KING	Respondent

---

JUDGES:	BOYCE, KAYE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2025
DATE OF JUDGMENT:	13 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 4
JUDGMENT APPEALED FROM:	DPP v Wu (County Court of Victoria, Judge Wischusen, 17 August 2023)

---

CRIMINAL LAW – Appeal – Conviction – Applicant convicted of trafficking in commercial quantity of methylamphetamine (Charge 1) and trafficking in commercial quantity of heroin (Charge 2) – Applicant found in possession of commercial quantity of pure heroin – No evidence of applicant’s belief that quantity of pure heroin exceeded commercial quantity – Whether open to jury to convict applicant on Charge 2 – Appeal allowed.

Drugs, Poisons and Controlled Substances Act 1981, referred to.

M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400; Pell v The Queen (2020) 268 CLR 123; R v Baden-Clay (2016) 258 CLR 308; DPP Ref No 1 of 2004; R v Nguyen (2005) 12 VR 299, considered.

APPEAL – Conviction – Jury directions – Prosecution granted leave to cross-examine applicant that she had lied in her evidence because she was conscious of her guilt – Applicant denied she had lied – No direction given to jury with respect to questions in cross-examination – Whether absence of direction to jury not to use impugned evidence as incriminating conduct evidence gave rise to miscarriage of justice – Conviction on Charge 1 inevitable – Application for leave to appeal refused.

Jury Directions Act 2015, ss 19, 20, 21, and 23, considered.

Zoneff v The Queen (2000) 200 CLR 234; Baini v The Queen (2012) 246 CLR 469; Awad v The Queen (2022) 275 CLR 421; Gaio v The Queen (1960) 104 CLR 419, considered.

APPEAL – Conviction – Applicant Chinese national with limited understanding of English language – Applicant required interpreter in police interview and at trial – Whether interpreter present at police interview interpreted conversation accurately – Audio of interview of poor quality – Audio played at trial – Interpreter engaged at trial did not interpret interview to the applicant – Whether failure by Crown to adduce proof that interpreter who interpreted the interview did so accurately gave rise to miscarriage of justice – Where trial counsel consented to audio being adduced as evidence without proof of accuracy of its interpretation – Application for leave to appeal refused.

Azizi v The Queen (2012) 224 A Crim R 325; DPP v BB [2010] VSCA 211; NT v The Queen (2012) 225 A Crim R 102, referred to.

---

Counsel
Applicant:		Mr DA Dann KC with Mr J O’Connor
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Valos Black & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BOYCE JA
KAYE JA
T FORREST JA:

The applicant was charged on indictment with four offences, alleged to have been…

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 Wu v The King

Details

AGLC: Wu v The King [2025] VSCA 4
Case: [2025] VSCA 4
Decision Date: 13 February 2025

CaseChat Overview and Summary

The applicant, Wu, was convicted by a jury of trafficking in a commercial quantity of methylamphetamine and trafficking in a commercial quantity of heroin. The applicant appealed the conviction on the heroin charge, arguing that the jury should not have been able to convict on the basis of the evidence presented. The appeal was heard in the High Court of Australia. The legal issues the court was required to decide centred on whether the jury was properly directed and whether the absence of certain evidence could be considered a miscarriage of justice.

The court examined whether the absence of direction to the jury regarding the use of cross-examination evidence as incriminating conduct evidence constituted a miscarriage of justice. The court found that while the absence of such a direction may have been an error, it did not give rise to a miscarriage of justice because the conviction on the first charge was inevitable. The court also considered whether the Crown's failure to prove that the interpreter accurately translated the police interview constituted a miscarriage of justice. The court found that this issue was also insufficient to overturn the conviction.

The court concluded that while the absence of certain directions and evidence may have been errors, they did not give rise to a miscarriage of justice. Therefore, the appeal was dismissed. The court did not grant leave to appeal for the applicant, and the convictions stood as determined by the jury.

Orders