Citation: CHOI v R [2007] NSWCCA 150
Court: NSW Court of Criminal Appeal
Date: 1 June 2007
Judge(s): Beazley JA, Hulme J, Hislop J (Beazley JA and Hislop J agreeing with Hulme J)
Background
The appellant was convicted in the District Court of being knowingly concerned in the importation of a commercial quantity of MDMA (3,4-methylenedioxymethamphetamine, commonly known as ecstasy) into Australia, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The offending occurred between March and December 2001. The shipment involved approximately 408,000 ecstasy tablets with a gross weight of 123 kilograms, concealed in a 40-foot shipping container arriving in Brisbane in November 2001.
Customs officers discovered the drugs, substituted most of the tablets, and permitted a controlled delivery under surveillance. Evidence showed the appellant travelled in convoy with a truck carrying the drug columns from Brisbane toward Sydney, and visited premises where the columns were later unloaded. He was sentenced by Solomon DCJ in the District Court to 20 years' imprisonment with a non-parole period of 13 years, both commencing 8 May 2003.
The appellant challenged both his conviction and his sentence on multiple grounds before the Court of Criminal Appeal.
Legal Issues
The court was asked to resolve the following questions:
Conviction grounds:
- Whether the trial judge erred in admitting recordings of telephone conversations conducted without the appellant's participation
- Whether the Crown Prosecutor impermissibly cross-examined the appellant about conversations to which he was not a party, and invited the jury to draw impermissible inferences from those conversations
- Whether the Crown Prosecutor impermissibly suggested to the jury that a co-offender's guilty plea could be used as corroboration of that co-offender's evidence at trial
- Whether the trial judge misdirected the jury on the use of intercepted conversations, on the elements of knowledge and importation, and on what had to be proved beyond reasonable doubt
Sentence grounds:
- Whether the 20-year sentence was manifestly excessive
- Whether the sentencing judge erred in applying parity principles by treating the appellant's circumstances as equivalent to those of a co-offender, Loui Sukkar, who faced an additional drug distribution charge
- Whether the sentencing judge failed to allow a discount for admissions that saved court time
- Whether the sentencing judge failed to account for time spent in custody in Korea and for the appellant's cooperation in not contesting extradition
Decision
Conviction appeal dismissed. The Court of Criminal Appeal rejected all grounds of appeal against conviction. On several grounds, no objection had been taken at trial and leave under Rule 4 of the Criminal Appeal Rules was required. The appellant did not formally seek leave on these grounds, and the court noted that counsel's submissions in support of leave were, where made at all, largely bare assertions. The court found no basis to conclude that the trial proceedings had miscarried.
Telephone conversation evidence. The court examined the complaints regarding the admission of intercepted conversations to which the appellant was not a party, and the Crown's use of those conversations in cross-examination and closing address. No appellable error was established in the trial judge's rulings or directions on this evidence.
Crown Prosecutor's conduct and jury directions. The court assessed the complaints about the Crown's submission that Shepherd's guilty plea could corroborate his evidence, and the alleged misdirections on knowledge and the meaning of importation. These grounds were not made out to the standard required to demonstrate that the trial proceedings miscarried or that there had been relevant error.
Sentence appeal dismissed. Leave to appeal against sentence was granted given the length of the sentence, but the appeal was dismissed. The court considered the parity argument concerning co-offender Sukkar, the claim for a discount on account of admissions, and the question of time spent in Korean custody. On the issue of s 16G of the Crimes Act 1914 (Cth), which had been repealed by the time of the appeal, the court confirmed that principles of justice and equity ordinarily require a convicted person to be re-sentenced according to the law as it stood when initially sentenced, particularly where that law was more favourable. However, the sentence ultimately stood.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that grounds not raised at trial require leave under Rule 4 of the Criminal Appeal Rules, and bare or formulaic submissions in support of leave are unlikely to be sufficient.
- A co-offender's guilty plea does not, without more, constitute corroboration of that co-offender's evidence given at a subsequent trial, and a Crown Prosecutor's invitation to the jury to treat it as such raises a ground of potential error.
- Where a court of criminal appeal quashes a sentence and re-sentences, considerations of justice and equity ordinarily require that the law applicable at the time of original sentencing apply, particularly where it was more favourable to the offender, consistent with the High Court's reasoning in Radenkovic v R (1990) 170 CLR 623.
- Leave to appeal against sentence may be granted on account of the length of a sentence even where the appeal itself is ultimately dismissed.
- No error was established in the sentencing judge's application of parity principles, assessment of admissions, or treatment of time in foreign custody in the circumstances of this case.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d)
- Crimes Act 1914 (Cth), s 16G (repealed from 16 January 2003)
- Criminal Appeal Rules, Rule 4
Cases:
- Radenkovic v R (1990) 170 CLR 623
- Cameron v The Queen [2002] HCA 6; (2002) CLR 339
- Mill v The Queen (1988) 166 CLR 59
- AB v The Queen (1999) 198 CLR 111
- R v Speer [2004] NSWCCA 118
- R v Schofield (not further cited in the provided text)
- R v Maclay (1990) 19 NSWLR 113