Weng v The Queen

(2013) 279 FLR 119; [2013] VSCA 221

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Conviction
4. › Fresh evidence
5. › Whether evidence available at trial
6. › Whether evidence actually or constructively available
7. › Great latitude to be extended to accused
8. › Whether significant possibility jury would have acquitted
9. › Substantial miscarriage of justice
10. › Criminal Procedure Act 2009 (Vic), s 276
1. Criminal Law
2. › Commonwealth offences
3. › Border controlled drugs
4. › Attempt to possess marketable quantity
5. › Fault element for attempt
6. › Whether Crown must prove knowledge or belief as to particular drug
7. › Whether sufficient to prove knowledge or belief substance was a 'border controlled drug'
8. › Criminal Code Act 1995 (Cth), ss 11.1, 300.5, 307.6
1. Criminal Law
2. › Commonwealth offences
3. › Statutory interpretation
4. › Operation of s 11.6 of Criminal Code (Cth)
5. › Whether s 300.5 applies to prosecution for attempt under s 11.1
6. › Whether reference to offence 'against this Part' includes attempt to commit such offence
7. › Criminal Code Act 1995 (Cth), ss 2.2, 11.6, 300.5

Quick Take

For an offence of attempting to possess a border controlled drug under ss 11.1 and 307.6(1) of the Criminal Code (Cth), the Crown need not prove that the accused knew or believed the substance was the particular border controlled drug (e.g., methamphetamine); it is sufficient to prove the accused believed the substance was a border controlled drug. Section 300.5 of the Code, by operation of s 11.6, applies to prosecutions for attempt under s 11.1. Fresh evidence from a co-offender who was not prepared to give evidence at trial due to fear of prosecution and deportation may qualify as evidence not available with reasonable diligence, even where the accused failed to instruct her legal advisors as to the true facts.