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Court of Criminal Appeal 6 July 2000

R v Duncan Sak Cheung LAM, Ting Man NGAI & Tin Fong SO (aka Man Kwan LAM)

[2000] NSWCCA 252

Drugs

Citation: R v Duncan Sak Cheung LAM, Ting Man NGAI & Tin Fong SO (aka Man Kwan LAM) [2000] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 6 July 2000
Judge(s): Sheller JA, Sully J, James J

Background

Three accused were jointly charged in the Sydney District Court with conspiracy to supply a large commercial quantity of a prohibited drug. When the trial was listed to begin in late June 2000, counsel for one of the accused (Mr So) successfully applied for an adjournment on the basis that he lacked sufficient time to obtain proper instructions and prepare his client's case. The trial judge granted the adjournment, finding that proceeding would risk prejudicing Mr So's right to a fair trial.

The effect of that adjournment was to create a practical severance, leaving the trial of the other two accused (Mr Lam and Mr Ngai) to proceed without Mr So. The Crown then applied to adjourn the trial against Mr Lam and Mr Ngai as well, so that all three could be tried together. The trial judge refused that application, noting that Mr Lam and Mr Ngai had already been in custody for approximately sixteen months and were ready to proceed.

The Crown filed a notice of appeal in the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912 and sought a stay of the trial pending determination of that appeal. The application came before the Court on 6 July 2000, four days before the trial was due to resume.

  • Whether the Court of Criminal Appeal should grant a stay of the trial pending the Crown's appeal under section 5F of the Criminal Appeal Act 1912.
  • Whether the Crown's notice of appeal, which characterised the trial judge's orders as a severance order, was valid on its face.
  • Whether the Crown should be permitted to amend its notice of appeal to challenge the refusal of the adjournment of the trial against Mr Lam and Mr Ngai.
  • Whether the trial judge erred in refusing the Crown's application to adjourn the trial against Mr Lam and Mr Ngai.

Decision

Sheller JA, with Sully J and James J agreeing, refused both the application for a stay and the application to amend the notice of appeal. The Court's reasoning proceeded in two distinct steps.

First, the notice of appeal as filed was defective on its face. It characterised the appealable decision as an order severing Mr So from the indictment, but the trial judge had made no such order. His Honour had simply granted Mr So's adjournment application. The Court found that no stay could be granted to allow an appeal to proceed on a ground that was, on its face, hopeless.

Second, the proposed amendment to the notice of appeal fared no better. The amended ground would have challenged the trial judge's refusal to adjourn the trial against Mr Lam and Mr Ngai. The Court found no arguable basis that the trial judge had acted on any wrong principle in doing so. The Crown's only real complaint was that the judge took into account submissions from counsel for Mr Lam about the prejudice her client faced from being tried alongside Mr So, but the Court was not persuaded that was an impermissible consideration in the circumstances.

The Court also noted that the Crown bore some responsibility for the situation. Counsel for the Crown had not drawn the trial judge's attention to the severance consequences when Mr So's adjournment was being considered. Had that been done, the Court observed, the matter might have been resolved by a short adjournment of only one or two weeks, allowing all three accused to be tried together.

Orders Made

  • Application for stay of trial refused.
  • Application to amend the notice of appeal refused.

Key Takeaways

  • The Court of Criminal Appeal will not grant a stay of trial proceedings to allow a Crown appeal to proceed where the notice of appeal is defective on its face and the ground of appeal is hopeless.
  • An adjournment granted to one accused, which has the practical effect of severing a joint trial, does not constitute a formal severance order and cannot be characterised as one for the purposes of an appeal.
  • Where a proposed amendment to a notice of appeal also lacks any real prospect of success, the Court will refuse leave to amend.
  • In refusing the adjournment of the trial against the remaining accused, the District Court was entitled to weigh the lengthy pre-trial custody of those accused and the prejudice to them of further delay, as well as the potential cost to the State of aborting a ten-week trial.
  • The Crown's failure to raise the severance consequences before the trial judge at the time of the adjournment application contributed directly to the procedural difficulties that followed.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), section 5F

Cases:
- The Queen v Domican, Unreported, 9 June 1989 (Hunt J, cited by the trial judge in relation to proceeding with a trial where the full picture is unclear)