R v Kim Van Mai [2000] NSWCCA 517

R v Kim Van Mai [2000] NSWCCA 517

The trial judge's direction allowed the jury to more readily accept the Crown case because the appellant had not given evidence, in circumstances where the case was not one warranting such a direction and the direction did not identify particular evidence requiring explanation. The later reference to the appellant's police interview did not withdraw or cure the error, especially because a significant Crown matter, that the parcel smelt of fish, had not been put to or explained by the appellant in the interview. Since the live issue was the appellant's knowledge of importation into Australia and the Crown case was not so compelling as to exclude a fairly open chance of acquittal, the...

Jurisdiction
Australia
Judgment Date
19 December 2000
Procedural Posture
Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From Conviction in the District Court
Outcome
Appeal allowed; conviction quashed; new trial ordered.
Legal Topics
['appeal Against Conviction' 'knowingly Concerned in Importation of Heroin' 'accused Not Giving Evidence' 'jury Directions' 'miscarriage of Justice' 'criminal Appeal Act Proviso']
['criminal Law' 'evidence' 'criminal Procedure'] ['appeal Against Conviction' 'knowingly Concerned in Importation of Heroin' 'accused Not Giving Evidence' 'jury Directions' 'miscarriage of Justice' 'criminal Appeal Act Proviso']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From Conviction in the District Court

Legal Issues

  1. 1 ["Whether the trial judge erred in directing the jury about the significance of the appellant's election not to give evidence." "Whether the erroneous direction was neutralised by the judge's further reference to the appellant's recorded police interview." 'Whether the proviso to s6(1) of the Criminal Appeal Act should be applied on the basis that no substantial miscarriage of justice occurred.' 'Whether an acquittal or a new trial should be ordered.']

Ratio Decidendi

The trial judge's direction allowed the jury to more readily accept the Crown case because the appellant had not given evidence, in circumstances where the case was not one warranting such a direction and the direction did not identify particular evidence requiring explanation. The later reference to the appellant's police interview did not withdraw or cure the error, especially because a significant Crown matter, that the parcel smelt of fish, had not been put to or explained by the appellant in the interview. Since the live issue was the appellant's knowledge of importation into Australia and the Crown case was not so compelling as to exclude a fairly open chance of acquittal, the...

Court Disposition

Appeal allowed; conviction quashed; new trial ordered.

Orders

  • ['Appeal allowed.' 'Conviction quashed.' 'New trial ordered.']