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25
Court of Criminal Appeal 11 June 2002

R v Chen & Others

[2002] NSWCCA 174

Also reported as (2002) 130 A Crim R 300
Drugs
CRIMINAL LAW CUSTOMS ACT 1901 (CTH) S 233B IMPORTATION OF PROHIBITED GOODS NARCOTICS HEROIN APPELLANTS CONVICTED AT TRIAL

Citation: R v Chen & Others [2002] NSWCCA 174
Court: NSW Court of Criminal Appeal
Date: 11 June 2002
Judge(s): Heydon JA, Sully J, Levine J

Background

The four appellants crewed a marine vessel that was intercepted by Commonwealth officers exercising powers under the Customs Act 1901 (Cth). The vessel's movements, including entries into and exits from Australian territorial waters, were influenced by the presence of Commonwealth marine vessels in the area. When Commonwealth officers ultimately boarded and searched the vessel, they found significant quantities of heroin.

A jury in the District Court convicted all four appellants of importing prohibited goods contrary to section 233B of the Customs Act 1901 (Cth). Shadbolt DCJ sentenced the primary offenders (Chen and Lau) to life imprisonment without parole, reflecting their senior roles. The remaining appellants (Siregar and Ismunandar) were treated as crew members in a lesser category.

All four appellants appealed against conviction. Chen and Lau also sought leave to appeal against their sentences. The appeals raised a range of distinct issues spanning jurisdiction, evidence, constitutional law, and sentencing principle.

  • Whether the conduct of Commonwealth vessels during the pursuit deprived the court of jurisdiction or amounted to an abuse of process
  • Whether the trial judge should have exercised the discretion under section 138 of the Evidence Act 1995 (NSW) to exclude the evidence obtained from the seizure and search of the vessel
  • Whether the NSW Director of Public Prosecutions, in applying for an increase of sentence under section 21E of the Crimes Act 1914 (Cth), was exercising Commonwealth judicial power in breach of section 71 of the Constitution
  • Whether the tendering of a witness's written undertaking to cooperate with law enforcement breached the credibility rule under section 102 of the Evidence Act 1995 (NSW)
  • Whether the life sentences without parole imposed on Chen and Lau were appropriate, having regard to principles of parity and the sentencing of serious drug offenders

Decision

Jurisdiction and abuse of process: The Court of Criminal Appeal held that, while a court may decline to exercise jurisdiction where proceedings constitute an abuse of process, the conduct of the Commonwealth here did not meet that threshold. The Court distinguished the English authority of R v Horseferry Road Magistrates' Court; Ex parte Bennett, finding that the circumstances of this case fell materially short of the conduct considered in that decision. The court retained jurisdiction and the prosecution was not an abuse of process.

Exclusion of evidence: The Court found that all acts of boarding, search, arrest and seizure were lawful when they took place. Even if some technical irregularity had existed, the extraordinarily high probative value of the evidence, combined with the other factors prescribed by section 138, meant that the desirability of admitting it far outweighed any countervailing undesirability. No error was established in the trial judge's refusal to exclude the evidence.

Constitutional challenge to DPP's power: The Court held that the power of the Director of Public Prosecutions under section 21E of the Crimes Act 1914 (Cth) to apply to a court for an increase in sentence is not an exercise of Commonwealth judicial power. The judicial power lies in the court's own function of forming and acting on findings. The DPP's role is limited to initiating proceedings before a competent court; section 21E does not produce any automatic or self-executing increase in sentence.

Credibility evidence and the written undertaking: The Court held that tendering the witness's written undertaking to cooperate with authorities did not breach section 102 of the Evidence Act 1995 (NSW). The evidence went not only to the witness's credibility but also to the witness's status as an accomplice, and the ancient rule permitting evidence of a witness's status was not abrogated by section 102. Separately, the failure to object to the undertaking's tender at trial weighed against any finding of miscarriage of justice.

Sentence: Leave to appeal against sentence was granted to Chen and Lau, but their appeals were dismissed. The Court discussed the principles governing the imposition of life terms without parole for serious drug offences, including parity principles, and concluded that the sentences were appropriate given the appellants' senior roles in the importation scheme.

Orders Made

  • The appeals against conviction by Chen, Siregar, Ismunandar and Lau are dismissed.
  • The applications by Chen and Lau for leave to appeal against sentence are allowed; the appeals against sentence are dismissed.
  • The applications by Siregar and Ismunandar for leave to appeal against sentence are stood over to the next Registrar's callover.

Key Takeaways

  • A court may decline jurisdiction where prosecutorial conduct amounts to an abuse of process, but the Court of Criminal Appeal confirmed that the bar is a high one: the Commonwealth's conduct in manoeuvring its vessels during a narcotics interception did not reach it.
  • Under section 138 of the Evidence Act 1995 (NSW), the discretion to exclude improperly obtained evidence involves a balancing exercise, and evidence with extraordinarily high probative value will be very difficult to exclude even where some procedural irregularity is alleged.
  • The DPP's power to apply to a court for an increase of sentence under section 21E of the Crimes Act 1914 (Cth) is not an exercise of Commonwealth judicial power; the judicial power remains with the court that hears and determines the application.
  • Evidence of a witness's written undertaking to cooperate with law enforcement does not necessarily breach the credibility rule in section 102 of the Evidence Act 1995 (NSW) where it also goes to the witness's status as an accomplice, a category of evidence preserved by the common law and not displaced by the statutory provision.
  • In dismissing the sentence appeals, the Court affirmed that life imprisonment without parole remains an available and, in appropriate cases, correct sentence for offenders who occupy senior roles in large-scale heroin importation.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 59, 184, 185, 233B
- Crimes Act 1914 (Cth), s 21E
- Evidence Act 1995 (NSW), ss 102, 138
- Judiciary Act 1903 (Cth)
- Constitution (Cth), s 71

Cases:
- R v Horseferry Road Magistrates' Court; Ex parte Bennett [1994] 1 AC 42
- Chu Kheng Lim & Ors v The Minister for Immigration, Local Government and Ethnic Affairs & Anor (1992) 176 CLR 1
- R v YZ [1999] NSWCCA 48
- R v Booth (1982) 8 A Crim R 81
- R v Gonzales-Betes [2001] NSWCCA 226
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1977) 189 CLR 295
- Bunning v Cross (1978) 141 CLR 54
- R v Wong and Leung (2001) 185 ALR 233; [2001] HCA 64
- Veen v The Queen [No 2] (1988) 164 CLR 465
- Adam v The Queen (2001) 183 ALR 625
- Cheung v The Queen (2001) 185 ALR 111; [2001] HCA 67
- R v Thomson and Houlton (2000) 115 A Crim R 104
- R v Mandagi [2002] NSWCCA 57
- R v Diamond (NSWCCA, unreported, 18 February 1993)