Zhao v DPP (Cth)

[2021] VSCA 101

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0079

ZHOUNAN ZHAO	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

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JUDGES:	KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 April 2021
DATE OF JUDGMENT:	21 April 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 101
JUDGMENT APPEALED FROM:	[2017] VCC 735 (Judge Lawson)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of four charges of importing a marketable quantity of a border controlled drug (heroin) – Whether verdicts unreasonable or not supported having regard to the evidence – Whether miscarriage of justice caused by incorrect construction at trial of to ‘deal with’ controlled substance under definition of ‘import’ in Criminal Code 1995 (Cth) – Leave to appeal granted – Appeal allowed – Convictions set aside – Judgments of acquittal entered – Criminal Code 1995 (Cth) ss 300.2 and 307.2, Criminal Procedure Act 2009 ss 277(1)(b) and 315 – R v Tranter (2013) 116 SASR 452, Ribbon v The Queen (2019) 134 SASR 328 applied.

CRIMINAL LAW – Appeal – Procedure – Application for leave to file amended notice of application for leave to appeal against conviction – Respondent conceded new ground of appeal should succeed – Leave to file amended notice granted.

WORDS AND PHRASES – ‘import’, ‘deal with’ – Criminal Code 1995 (Cth) s 300.2.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr J O’Connor	Emma Turnbull Lawyers
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

KYROU JA

KAYE JA:

1. The applicant was charged on indictment with four charges of importing a marketable quantity of a border controlled drug, namely heroin, contrary to s 307.2(1) of the Criminal Code 1995 (Cth).  Those charges constituted charges 2, 4, 5 and 7 on the indictment.  The indictment also contained five charges in respect of a co-accused Xi Chen (‘Chen’), namely charges 1, 3, 6, 8 and 9, which related to five different importations of heroin. 

1. The charges against the applicant and Chen were tried together.  After a trial lasting twelve days, the jury returned verdicts of guilty against both accused. 

1. The applicant originally sought leave to appeal against conviction on one ground, namely, that the verdicts were unreasonable or could not be supported having regard to the evidence. The application for leave to appeal, on that ground, having been refused by a single judge, the applicant then elected to have the application determined by the Court of Appeal constituted by at least two judges pursuant to s 315 of the Criminal Procedure Act 2009. 

1. Subsequently, the applicant sought leave to file an amended notice of application for leave to appeal which had an additional ground (ground 2). Upon receipt of the proposed amendment, and the applicant’s revised written case, the respondent has notified the Court that it intended to concede that ground 2 of the application, and of the proposed appeal, should succeed. The position of the respondent is that the convictions should be set aside and judgments of acquittal in respect of each of the charges should be entered pursuant to s 277(1)(b) of the Criminal Procedure Act. 

1. For the reasons that follow, we are persuaded that the concession so made by the respondent is correct.  Accordingly, it will be ordered that the applicant have leave to file the amended application for leave to appeal, and that orders should be made, granting leave to appeal, and allowing the appeal.  It will also be ordered that, as a consequence, the convictions of the applicant on each of the four charges should be set aside, and that judgments of acquittal in respect of each of those charges should be entered.

1. In order to prove each charge against the applicant, the prosecution was required to prove, among other matters, that the applicant imported the border controlled drug that was the subject of the particular charge. Section 300.2 of the Criminal Code defines the verb ‘import’ as follows:

Import, in relation to a substance, means import the substance into Australia and includes:

(a)       bring the substance into Australia;  and

(b)       deal with the substance in connection with its importation.

1. The prosecution did not seek to establish that the applicant, in any relevant respect, brought the particular substance, that was the subject of each charge, into Australia.  Rather, the prosecution case was that the applicant dealt with the substance in connection with its importation. 

1. In short, the prosecution alleged that the applicant was part of a Melbourne based syndicate which included Chen, and Chen’s boyfriend Chee Ho Chow (‘Chow’), each of whom was involved in the importation of heroin into Australia.  The syndicate would nominate various consignees at various addresses in Melbourne to receive packages containing drugs imported from Malaysia.  The packages would be collected from the consignees and then taken to a contact in Springvale, a man named Kheng Ooi, in exchange for money. 

1. It was alleged that the applicant mainly had contact with Chen, whose role was to arrange for the applicant to receive packages at her work and home addresses, which Chen was to collect on arrival and provide to Chow.  The prosecution led evidence as to telephone calls that it had intercepted between 28 September and 7 October 2016 between Chen’s mobile telephone number and mobile telephone numbers connected to the applicant, which revealed conversations in relation to consignments, delivery addresses, expected delivery dates and collection arrangements.  In addition, during those dates the applicant and Chen exchanged WeChat messages about consignments and deliveries, including discussions as to the status or whereabouts of consignments.  Further, on 7 October 2016, a police officer, posing as a delivery driver, attempted to make a controlled delivery of the consignment that was the subject of charge 5 to the residential address of the applicant in Melbourne.  Police had earlier substituted the heroin that was contained in the consignment with an inert substance.  When police contacted the mobile telephone number of the applicant, they were told by a female who answered it that the person nominated as the consignee was not at home, that she was not expecting a parcel, and that she was at a friend’s house. 

1. In fact, none of the four consignments, that were the subject of the charges against the applicant, were delivered.  The consignment that was the subject of charge 2, and which contained 221.4 grams of pure heroin, was intercepted by members of the Australian Border Force on 1 September 2016.  The consignment that was the subject of charge 4 contained 235.9 grams of pure heroin.  It was intercepted by Australian Border Force on 19 September 2016 and was never delivered.  The consignment that was the subject of charge 7 contained 215.2 grams of pure heroin.  It was intercepted by members of Australian Border Force on 28 September 2016 and it, too, was never delivered.  As we have mentioned, the consignment, that was the subject of charge 5, and which contained 249.1 grams of pure heroin, was intercepted by Australian Border Force on 21 September 2016.  The police substituted the heroin inside the consignment with an inert substance, and unsuccessfully attempted to deliver it by way of a controlled delivery to the applicant. 

1. In her final address, the prosecutor submitted to the jury that it should be satisfied that the applicant dealt with the substances that were the subject of each of the four charges.  The prosecutor based that proposition on two particular factors.  First, the prosecutor relied on the fact that the applicant had provided addresses to which the consignments were to be delivered.  She submitted to the jury that the provision of a delivery address was a ‘fundamental component’ of an importation.  Secondly, the prosecutor submitted that there was evidence that the applicant was prepared to track the parcels involved in the importations, to receive them once they were imported, to pass them to others after she had received the parcels, or to provide information to persons higher in the syndicate about any seizures of consignments that had taken place. 

1. On analysis, none of those factors, either singularly or in combination, could be sufficient to establish, beyond reasonable doubt, that the applicant had dealt with the particular substance, that was the subject of the charge in question, in respect of the importation of that substance. 

1. The content and meaning of the phrase ‘deal with’, and the definition of that term in s 300.2 of the Criminal Code, has been considered in two decisions of the Court of Criminal Appeal of South Australia in R v Tranter[1] and Ribbon v The Queen.[2]

   [1](2013) 116 SASR 452; [2013] SASCFC 61 (‘Tranter’).

   [2](2019) 134 SASR 328; [2019] SASCFC 130 (‘Ribbon’).

1. In Tranter, Peek J (with whom Kourakis CJ agreed) stated two principles which are relevant to the present case.  First, it must be proven that the accused person dealt with the substance that is the subject of the charge.  Accordingly, it is not possible for an accused to deal with the substance, where the conduct of the accused, relied on by the prosecution, occurred subsequent to the substitution of a different substance by the police.[3]  Secondly, the requisite dealing with the substance must be in connection with the importation of that substance.  That requirement excludes conduct by an accused that is materially removed from the importation of the particular substance.[4] 

   [3]Tranter (2013) 116 SASR 452, 474 [88]; [2013] SASCFC 61.

   [4]Ibid 475 [93].

1. The principles so stated by Peek J in Tranter were adopted and elaborated by the Court in Ribbon, which was decided one year after the conclusion of the trial in this case.  In particular, in Ribbon, Peek J (with whom Parker and Doyle JJ agreed) identified three important principles, namely:

(1)At the time of the alleged dealing by the accused, the substance in question must be in existence.  If the conduct alleged against the accused occurred before that time, there would be no substance for the accused to have dealt with.[5]

(2)Similarly, actions of an accused person, that were performed after a full police substitution of an inert substance for the subject substance, cannot constitute a dealing with the subject substance.[6]

(3)In order that an accused be held to have dealt with a substance, it must be established that the accused either had possession of, or otherwise in a material respect had control of the disposition of, the substance in question.[7]

[5]Ribbon (2019) 134 SASR 328, 389 [146]; [2019] SASCFC 130.

[6]Ibid 387 [140], 391 [153].

[7]Ibid 391 [156].

1. In the present case, the evidence demonstrated that the applicant must have provided her addresses to Chen at a time before 4 August 2016.  That date was several weeks before the packages, that were the subject of any of the charges, were intercepted.  As we have noted, the package that was the subject of charge 2 was intercepted on 1 September 2016.  The packages that were the subject of the other charges 4, 5 and 7 were intercepted after that date.  There was therefore no evidence which could have enabled the jury to conclude that the substances contained in any of the charges were in existence when the applicant gave Chen her addresses.  Further, and in any event, the provision by the applicant to Chen of those addresses did not, and could not, alone, constitute the possession by the applicant of those substances, or prove that she had control of their disposition at that time. 

1. Similarly, the fact that the applicant might have been prepared to have tracked the parcels involved, to receive them when they arrived, and to pass them on to others, was insufficient to prove that the applicant dealt with the substances that were the subject of any of the four charges.  As we have noted, each of the parcels, that was the subject of charges 2, 4, 5 and 7, was intercepted and retained by Australian Border Force.  From that time, those parcels were neither in the applicant’s possession nor at her disposition.  Further, and in any event, the fact that she was prepared to engage in activities such as tracking the parcels and receiving them, was not sufficient of itself to constitute a dealing with the parcels. 

1. It follows that ground 1 of the proposed application for leave to appeal is made out.  In short, the evidence adduced at trial, taken at its highest, was insufficient to establish the principal element of the offence that was the subject of each charge, namely, that the applicant imported the substance that was the subject of the offence.  While the evidence might have been sufficient to support a different charge, such as conspiracy to import a border controlled substance, it was insufficient to establish the guilt of the applicant of the offences charged against her.

1. Ground 2 in essence is to the effect that there was a substantial miscarriage of justice in circumstances in which the trial was not conducted on the basis of the correct construction of the phrase ‘deal with the substance’ or ‘import’, and that the judge did not give appropriate directions to the jury concerning whether the applicant had dealt with the substance in connection with the importation of that substance in accordance with the principles that we have discussed.  For the reasons we have discussed, we are persuaded that that ground is also made out.

1. At trial, the parties did not, in terms, address the issue of whether the actions attributed to the applicant were sufficient to prove that she dealt with, and thus imported, the substances.  In particular, they did not address the issues now raised on this application, such as whether the substances were in existence at the time it was alleged that they were dealt with by the applicant, and whether, in any event, the actions of the applicant, relied on by the prosecution, could or did amount to the requisite dealing by her with the substances.  As a consequence, the judge did not direct the jury as to the principles, outlined in Tranter and Ribbon, that were relevant to the jury’s determination whether the conduct, ascribed to the applicant, constituted the importation by her of the substances in question.

1. For those reasons, the applicant should be granted leave to file the amended notice of application for leave to appeal against conviction.  Leave to appeal is granted, and the appeal allowed, on each of the two grounds contained in the amended notice. 

1. In accordance with the concession correctly made on behalf of the respondent, the verdicts and convictions of the applicant on each of the four charges will be set aside, and judgments of acquittal for the offences the subject of the charges will be entered pursuant to s 277(1)(b) of the Criminal Procedure Act.

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