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Court of Criminal Appeal 7 June 2002

Regina v. CHAN

[2002] NSWCCA 217

Also reported as (2002) 131 A Crim R 66
Drugs
CRIMINAL LAW EVIDENCE WARNINGS RELATIONSHIP EVIDENCE NOT ADMITTED AS TENDENCY EVIDENCE PROBATIVE VALUE AND PREJUDICIAL EFFECT

Citation: Regina v Chan [2002] NSWCCA 217
Court: New South Wales Court of Criminal Appeal
Date: 7 June 2002
Judge(s): Hodgson JA; Levine J; Smart AJ

Background

The appellant was charged with being knowingly concerned in the importation of a commercial quantity of heroin into Australia between October and November 1997. He was arrested on 29 November 1997 and stood trial in the District Court in July and August 2000. The trial ran for fifteen days, and the jury convicted him on 11 August 2000.

At sentencing, Shillington DCJ imposed a term of 20 years imprisonment with a non-parole period of 15 years. The Court of Criminal Appeal found the appellant had been the principal organiser in Australia who sought to have others bear the immediate risk of detection. Over two kilograms of heroin were involved.

The appellant challenged both his conviction and his sentence. His conviction appeal raised multiple grounds, centring on the admission and use of prior drug-dealing evidence, the adequacy of jury directions, and the correct legal elements of the importation offence.

  • Whether the trial judge was required to warn the jury under section 165 of the Evidence Act 1995 that the evidence of the key Crown witness, Feng Wang, may be unreliable, and whether the failure to do so caused a miscarriage of justice
  • Whether Wang's evidence about prior drug-dealing activities between Wang and the appellant was properly admitted, including whether the trial judge should have applied the tendency evidence rules under sections 97 and 101 of the Evidence Act 1995 rather than the common law approach
  • Whether the trial judge's directions to the jury on the purpose of the "relationship evidence" were adequate and accurate
  • Whether the jury directions on the elements of the offence, particularly the concepts of "knowingly concerned" and "importation" under the Customs Act, were legally correct
  • Whether trial counsel's failure to seek certain directions amounted to a miscarriage of justice
  • Whether the sentence and non-parole period were appropriate, and whether the commencement date was correct

Decision

The Court of Criminal Appeal dismissed the conviction appeal. On the section 165 warning issue, the Court found that the trial judge had good reasons for declining to give the unreliability warning, and that the absence of an explicit statement of those reasons did not itself constitute a miscarriage of justice. The directions given were considered adequate in the circumstances.

On the relationship evidence, the Court considered that the prior drug-dealing evidence between Wang and the appellant was not admitted as tendency evidence under the Evidence Act 1995 but rather as contextual or relationship evidence. Its admission was found to be within the trial judge's discretion, and its probative value was not outweighed by unfair prejudice under section 137. The directions given to the jury about the limited purpose of that evidence, while not framed in the precise language the appellant sought, did not give rise to any demonstrated miscarriage of justice.

The Court also rejected the challenges to the jury directions on "knowingly concerned" and "importation." The directions given were found to convey the essential elements of the offence accurately. Failures by trial counsel to seek specific directions were examined but did not establish a miscarriage of justice.

On sentence, the Court identified two errors: the non-parole period was excessive relative to the applicable range, and the commencement date was wrong. The 20-year head sentence was confirmed, but the non-parole period was reduced from 15 years to 13 years and 6 months. The commencement date was also adjusted to credit pre-sentence custody the appellant had served from 29 November 1997 to 15 January 1998.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against the 20-year sentence of imprisonment dismissed
  • Non-parole period of 15 years quashed; non-parole period of 13 years and 6 months substituted
  • Commencement date of the sentence and non-parole period varied to 27 June 2000, with the non-parole period ending 2 December 2013

Key Takeaways

  • A trial judge who declines to give an unreliability warning under section 165 of the Evidence Act 1995 must have "good reasons" for doing so, but is not necessarily required to articulate those reasons expressly in every case; the Court of Criminal Appeal found the absence of explicit reasons did not cause a miscarriage of justice on the facts here.
  • Relationship or contextual evidence of prior dealings between a witness and an accused may be admissible without being characterised as tendency evidence under sections 97 and 101 of the Evidence Act 1995, provided its probative value is not outweighed by the risk of unfair prejudice under section 137.
  • Where relationship evidence is admitted, jury directions on its limited purpose need not follow a formulaic script, but must adequately convey that the evidence cannot be used as propensity or tendency reasoning to establish guilt of the charged offence.
  • In dismissing most of the sentence appeal, the Court of Criminal Appeal confirmed that for offences of this gravity involving over two kilograms of heroin, a sentencing starting point of less than 30 years (before the section 16G adjustment for the absence of remissions) would be erroneous.
  • Pre-sentence custody served in relation to the charged matter should ordinarily be credited in fixing the commencement date of a sentence, and failure to do so constitutes an error requiring correction on appeal.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), sections 95, 97, 101, 137, 165
- Customs Act 1901 (Cth), section 233B
- Crimes Act 1914 (Cth), section 16G

Key Cases:
- BRS v The Queen (1997) 191 CLR 275
- Longman v The Queen (1989) 168 CLR 79
- Domican v The Queen (1991) 173 CLR 444
- Pfennig v The Queen (1995) 182 CLR 461
- Crofts v The Queen (1996) 186 CLR 427
- Gipp v The Queen (1998) 194 CLR 106
- Ryan v The Queen (2001) 179 ALR 233
- Wong v The Queen (2001) 185 ALR 233
- R v Wong and Leung (1999) 48 NSWLR 340
- El Karhani (1990) 21 NSWLR 370
- Bernier (1998) 102 A Crim R 44
- Harriman v The Queen (1989) 167 CLR 590