Lin v R [2019] NSWCCA 171

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lin v R [2019] NSWCCA 171 Hearing dates: 17 July 2019 Decision date: 05 August 2019 Before: Leeming JA at [1]; Davies J at [80]; Hidden AJ at [81] Decision: 1. Extend the time within which to appeal to 28 February 2019.

2. Grant leave to appeal, including leave pursuant to r 4 of the Criminal Appeal Rules.

3. Appeal allowed.

4. Quash the convictions on the charges contained on the indictment dated 20 October 2015.

5. Order that the matter be remitted to the District Court for retrial. Catchwords: CRIMINAL LAW – appeal – appeal against conviction – applicant found guilty of offences under Commonwealth Criminal Code of importing border controlled drugs – large quantity of methamphetamine imported into Australia by sea glued to insides of kayaks – applicant involved in obtaining possession of kayaks from freight forwarder – extended definition of import – physical elements of offences satisfied – fault elements of offences – prosecution required to establish applicant intended to import a substance, and knew or was reckless as to the substance being a border controlled drug – whether jury was misdirected – written directions distinguished fault elements – lengthy oral directions conflated the two – overall effect apt to instruct jury that sufficient to find that applicant was reckless as to all elements – primary judge in fact sentenced on that basis – proviso inapplicable – appropriate case for extension of time and grant of leave pursuant to r 4 Criminal Appeal Rules – convictions quashed and retrial ordered – Commonwealth Criminal Code, ss 5.2, 5.4, 11.1, 307.1, 307.3, 307.5 Legislation Cited: Commonwealth Criminal Code, ss 5.2, 5.4, 5.6, 11.1, 300.2, 300.6, 307.1, 307.3, 307.5 Criminal Appeal Rules, r 4 Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth), Schedule 1 Cases Cited: Barker v The Queen [2012] WASCA 51 El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63 Justins v R (2010) 79 NSWLR 544; [2010] NSWCCA 242 Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270 O'Grady v The Queen (2014) 252 CLR 621; [2014] HCA 38 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Onuorah v R (2009) 76 NSWLR 1; [2009] NSWCCA 238 Smith v The Queen (2017) 259 CLR 291; [2017] HCA 19 TA v R [2015] NSWCCA 151 Category: Principal judgment Parties: Chien Wei Lin (Appellant) Crown (Respondent) Representation: Counsel: