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Court of Criminal Appeal 23 November 2007

Le v R

[2007] NSWCCA 330

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING PROCEDURAL FAIRNESS DURESS EVIDENCE OF A CO PROCEDURAL FAIRNESS DENIED.

Citation: Le v R [2007] NSWCCA 330
Court: NSW Court of Criminal Appeal
Date: 23 November 2007
Judge(s): McClellan CJ at CL, Hall J, Price J

Background

The applicant and a co-offender, Nguyen, pleaded guilty in the District Court at Parramatta to one count of specially aggravated kidnapping and three counts of robbery in company. A central issue at sentencing was the applicant's claim that he had participated in the offences under duress, arising from implied and express threats made by Nguyen. Duress is a mitigating factor that a sentencing court must consider when assessing an offender's culpability.

Sentencing proceedings spanned several dates across 2006. After the applicant's case closed and comprehensive written and oral submissions had been made, the proceedings were adjourned to 29 September 2006 for sentence. The applicant's legal representative, attending that day only to receive judgment, left the courtroom after being told the matter would not proceed to sentence that day.

After the applicant's solicitor departed, Nguyen's counsel tendered a letter from Nguyen and then called Nguyen to give oral evidence. Nguyen's evidence directly contradicted the applicant's account of duress. The applicant and his legal representatives had no notice that this evidence would be taken, were not present, and had no opportunity to cross-examine Nguyen or respond to his evidence.

  • Whether taking evidence from Nguyen in the complete absence of the applicant and his legal representatives constituted a denial of procedural fairness
  • Whether that denial amounted to a miscarriage of justice warranting appellate intervention
  • Whether, even if procedural error occurred, any cross-examination of Nguyen on behalf of the applicant could have made a material difference to the sentencing outcome

Decision

Price J (with McClellan CJ at CL and Hall J agreeing) found that a clear denial of procedural fairness had occurred. Nguyen gave evidence that went directly to the contested issue of duress, and most of that evidence had not been put to the applicant during cross-examination at the earlier stages of proceedings. The sentencing Judge had received a warning from Nguyen's own counsel that the applicant's representatives might want to know if Nguyen was to be called, yet that caution was not heeded.

On 20 October 2006, the sentencing Judge acknowledged the procedural difficulty and offered the applicant's solicitor an opportunity to cross-examine Nguyen. However, by that point neither the letter nor a transcript of Nguyen's evidence had been provided to the applicant's representative. No transcript was yet available. The Court of Criminal Appeal found that this belated and inadequate offer did not cure the earlier procedural failure.

The Crown argued that no material difference would have resulted from cross-examination of Nguyen. The Court rejected that submission. The sentencing Judge had found the applicant equally responsible for violence, a finding that rested on the rejection of the duress claim. Had duress been established, that finding could not have been made, and the sentence would likely have differed.

Because the sentencing Judge had accepted Nguyen's evidence, the Court concluded that the sentencing proceedings would have to recommence before a different judge, so that the issue of duress could be properly determined with both parties afforded full procedural fairness.

Orders Made

  • Leave to appeal granted if required
  • Appeal allowed
  • Sentences imposed on counts 1, 2, 3 and 4 quashed
  • Matter remitted to the District Court to be heard and determined by a judge of that court according to law
  • Sentencing proceedings to recommence before a different District Court judge, as the original sentencing judge had accepted Nguyen's evidence

Key Takeaways

  • A sentencing court's acceptance of evidence given entirely in the absence of the affected offender and their legal representatives constitutes a denial of procedural fairness, regardless of any belated opportunity later offered to respond.
  • The Court of Criminal Appeal confirmed that duress, as a mitigating factor under s 21A(3)(d) of the Crimes (Sentencing Procedure) Act 1999, is directly relevant to an offender's culpability, and a finding adverse to an offender on that issue must be reached in conformity with procedural fairness requirements.
  • Where a miscarriage of justice has occurred and the relevant factual findings are critical to the proper exercise of sentencing discretion, the Court of Criminal Appeal may be unable to simply re-sentence; remittal to the District Court may be the appropriate remedy.
  • Sufficient concern existed about the original judge's acceptance of Nguyen's evidence to warrant remittal to a different judge, preserving the appearance as well as the reality of a fair hearing.
  • Co-accused sentencing proceedings that involve contested factual issues between co-offenders require careful procedural management to ensure each party has notice of, and an opportunity to respond to, evidence that may adversely affect their position.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(3) (specially aggravated kidnapping), 97 (robbery in company)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(d) (duress as mitigating factor)

Cases cited: No cases were cited in the text provided.