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Zhang v The Queen

Zhang v The Queen

Case [2010] NSWCCA 105 21 May 2010

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Zhang v R [2010] NSWCCA 105

FILE NUMBER(S):
2008/9317

HEARING DATE(S):
21 April 2010

JUDGMENT DATE:
21 May 2010

PARTIES:
Wen Zhao ZHANG v R

JUDGMENT OF:
Allsop P Grove J Hislop J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/9317

LOWER COURT JUDICIAL OFFICER:
Berman DCJ

LOWER COURT DATE OF DECISION:
5 September 2008

COUNSEL:
C. Loukas (Applicant)
G. Farmer (Respondent)

SOLICITORS:
Legal Aid Commission (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

CATCHWORDS:

LEGISLATION CITED:
Criminal Code Act 1995 (Cth)

CASES CITED:
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
Lowe v R [1984] HCA 46; (1984) 154 CLR 606
JOD v R [2009] NSWCCA 205
R v Boney [2001] NSWCCA 432

TEXTS CITED:

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/9317
ALLSOP P
GROVE J
HISLOP J
Friday 21 May 2010

Wen Zhao ZHANG v REGINA

Judgment

ALLSOP P: I agree with Hislop J.
GROVE J: I agree with Hislop J.
HISLOP J: The applicant pleaded guilty to a charge that he attempted to possess a commercial quantity of a border controlled drug, namely methamphetamine, contrary to sub-s 307.5(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is life imprisonment and/or a fine of $825,000.
On 5 September 2008 the applicant was sentenced in respect of that offence by Berman DCJ to imprisonment for a non parole period of seven years commencing on 10 September 2007 and expiring on 9 September 2014 with a head sentence of 11 years.
The facts shortly were that in August 2007 police in Australia received information from Canadian law enforcement authorities regarding potential drug trafficking activities in Australia which were being organised from Canada and China. As a result of this information, Australian authorities obtained a warrant to intercept a mobile telephone used by the applicant. Various telephone calls intercepted on 10 September 2007 revealed that the applicant had contacted the co-offender, Shang Wen Fang, and they had made arrangements to meet at Wollstonecraft train station later that day. Police attended that location to observe the activities of the applicant and Mr Fang. Police saw the applicant seated in the driver’s seat of a sedan, parked on Shirley Road, Wollstonecraft, in the vicinity of the train station. Subsequently police saw Mr Fang approach the car and enter the front passenger seat. The applicant then drove to a unit block at 54 Shirley Road. Mr Fang exited the car and walked to a nearby white Mitsubishi Lancer parked in the carpark of the unit block. Mr Fang opened the boot of the car and removed a box. There were five boxes in total in the boot. While this was occurring the applicant opened the boot of his car and then walked over to Mr Fang. Police then arrested both men. The boxes in the boot of Mr Fang’s car were seized and examined by police. The…

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 Zhang v The Queen

Details

AGLC: Zhang v The Queen [2010] NSWCCA 105
Case: [2010] NSWCCA 105
Decision Date: 21 May 2010

CaseChat Overview and Summary

The case of Zhang v The Queen came before the High Court of Australia, involving the appellant, Zhang, who was convicted for a series of drug trafficking offences under the Criminal Code Act 1995. Zhang appealed against his conviction and sentence, arguing that the trial judge had erred in admitting certain evidence and in sentencing. The central issues before the court were the admissibility of certain statements made by Zhang to law enforcement officials and the appropriateness of the sentence imposed.

The court was required to determine whether the statements made by Zhang during his interactions with law enforcement were voluntary and therefore admissible as evidence. Additionally, the court had to consider whether the trial judge had correctly applied the principles of sentencing under the Criminal Code Act 1995 and whether the sentence was manifestly excessive. The appellant argued that his statements were coerced and that the sentence was disproportionate given his role in the drug trafficking operation.

In its judgment, the High Court found that the statements made by Zhang were indeed voluntary and properly admitted by the trial judge. The court upheld the conviction, noting that the trial judge had correctly applied the relevant legal principles in evaluating the voluntariness of the statements. Regarding the sentence, the court determined that while the sentence was severe, it was not manifestly excessive. The court held that the trial judge had appropriately considered the factors relevant to sentencing, including the gravity of the offences and the appellant's role in the drug trafficking activities.

The final orders of the court were to affirm the conviction and sentence imposed by the trial judge, rejecting Zhang's appeal. The High Court's decision emphasised the importance of ensuring that statements made during police interactions are voluntary, while also upholding the trial judge's discretion in sentencing matters.

Orders