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:

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.

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.

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.

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…

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 Zhao v DPP (Cth)

Details

AGLC: Zhounan Zhao v Director of Public Prosecutions (Cth) [2021] VSCA 101
Case: [2021] VSCA 101
Decision Date: 21 April 2021

CaseChat Overview and Summary

Zhao, the appellant, appealed against his conviction for four charges of importing a marketable quantity of a border controlled drug, namely heroin, contending that the verdicts were unreasonable or not supported having regard to the evidence, and that a miscarriage of justice had occurred because of the incorrect construction at trial of the phrase ‘deal with’ a controlled substance under the definition of ‘import’ in the Criminal Code 1995 (Cth). The respondent conceded that the new ground of appeal should succeed. The court granted leave for the appellant to file an amended notice of application for leave to appeal against conviction. The legal issues were whether the verdicts were unreasonable or not supported having regard to the evidence, and whether a miscarriage of justice had occurred due to the incorrect construction of the phrase ‘deal with’ a controlled substance under the definition of ‘import’ in the Criminal Code 1995 (Cth). The court considered the evidence and the relevant legal principles and concluded that the verdicts were unreasonable and that there had been a miscarriage of justice. The court set aside the convictions and entered judgments of acquittal.

The court noted that the appellant was convicted on the basis that he had ‘dealt with’ heroin, which was in turn defined as ‘importing’ it. The court examined the definition of ‘import’ and concluded that it required a more active and direct involvement in the movement of the drugs than what the evidence showed. The court found that the phrase ‘deal with’ should be construed as requiring a more active and direct involvement in the movement of the drugs than what the evidence showed. The court held that the verdicts were unreasonable because they were not supported by the evidence, and that there had been a miscarriage of justice because of the incorrect construction of the phrase ‘deal with’ a controlled substance under the definition of ‘import’ in the Criminal Code 1995 (Cth). The court set aside the convictions and entered judgments of acquittal. The court noted that the respondent conceded that the new ground of appeal should succeed, and granted leave for the appellant to file an amended notice of application for leave to appeal against conviction.

Orders