Citation: Li, Wing Cheong v R [2010] NSWCCA 40
Court: New South Wales Court of Criminal Appeal
Date: 8 March 2010
Judge(s): Macfarlan JA, Howie J, Hall J
Background
The appellant was convicted by a jury in the District Court of dealing with money that was the proceeds of crime, in circumstances where he believed it to be such proceeds, contrary to s 400.3(1) of the Criminal Code (Cth). The money involved exceeded $2.6 million in cash, stored in a residential unit in Roseville. The Crown alleged the funds represented part of the proceeds of a large cocaine importation, and that the appellant had travelled from Venezuela to Australia in April 2005 specifically to collect and repatriate the money.
The appellant, who is of Chinese background but resident in Venezuela, denied any knowledge that the money was criminally derived. He claimed it was his own money from a legitimate commercial transaction. He was sentenced to 12 years imprisonment with a non-parole period of 8 years.
Two co-accused facing similar charges were acquitted. Only the conviction appeal was determined at this hearing, with the Crown's leniency appeal and the appellant's sentence application stood over pending separate proceedings.
Legal Issues
- Whether intercepted telephone conversations between persons not charged with the offence constituted inadmissible hearsay under s 59(1) of the Evidence Act 1995
- Whether that evidence should have been excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice
- Whether the trial judge's directions to the jury on how to use the telephone call evidence were adequate
- Whether the Crown's address to the jury was prejudicial and, if so, whether the trial judge's directions in response were adequate
- Whether the trial judge's directions on the appellant's good character were adequate
- Whether a juror playing the word game "Target" during the trial constituted jury misconduct giving rise to a miscarriage of justice
Decision
Hearsay and exclusion under s 137: The Court found that the intercepted telephone conversations were not adduced to prove the truth of their contents, but rather as circumstantial evidence from which the jury could draw inferences about the purpose of the appellant's visit and the nature of the money. On that basis, the evidence did not engage the hearsay rule in s 59(1). The Court also rejected the argument that the evidence should have been excluded under s 137, finding its probative value was not outweighed by unfair prejudice.
Jury directions on use of telephone calls: The Court was satisfied that the trial judge's directions adequately explained the limited use the jury could make of the telephone conversations, particularly in identifying the appellant as the person referred to in those calls and in understanding the context in which he came to be involved with the money.
Crown's address and character directions: The Court found no reversible error in the trial judge's response to the Crown's address to the jury. Similarly, while the directions on good character were examined carefully, the Court concluded they were adequate in the circumstances and disclosed no error that would warrant disturbing the conviction.
Juror misconduct: Evidence emerged after trial that one juror had, on at least one occasion, played the word game "Target" while in the jury box. The Court rejected this as a ground of appeal. It drew a distinction from cases such as Cesan v The Queen, noting there was no evidence of repeated or systematic distraction, no suggestion the juror was inattentive during critical evidence, and no one present at trial, including legal representatives for the Crown and all three accused, had noticed or reported the conduct to the judge. The Court observed that a juror playing a word game is no more concerning than a juror who doodles, particularly during periods of less demanding evidence such as the extended playing of Spanish-language transcripts already provided to the jury in English translation.
Orders Made
- The conviction appeal is dismissed.
Key Takeaways
- Intercepted telephone conversations between uncharged persons are not necessarily hearsay where they are tendered as circumstantial evidence of surrounding circumstances rather than to prove the truth of the words spoken.
- Under s 137 of the Evidence Act 1995, evidence will not be excluded merely because it is prejudicial; the probative value must be shown to be outweighed by the danger of unfair prejudice, a threshold the Court found was not met here.
- A juror playing a word game during trial does not automatically give rise to a miscarriage of justice. The Court of Criminal Appeal confirmed that the absence of complaint from those present at trial, including all defence counsel, will ordinarily weigh heavily against a later finding of miscarriage on this basis.
- In dismissing the juror misconduct ground, the Court confirmed that appellate courts will generally require more than retrospective observer opinions to conclude that a juror's inattention caused a miscarriage; repeated or systemic distraction during critical evidence, as in Cesan, presents a materially different case.
- The acquittal of co-accused on similar charges has no bearing on the validity of a separate conviction arising from the same facts.
Legislation and Cases Referenced
Legislation:
- Criminal Code (Cth), ss 135, 400.3(1), 400.3(4)
- Evidence Act 1995 (NSW), ss 59(1), 135, 137
- Judiciary Act (Cth), s 78B
- Jury Act 1977 (NSW), ss 53A, 73A, Part 9
- Criminal Appeal Rules, Rule 4
Cases:
- Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
- Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283
- Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558
- Regina v Lee [1998] HCA 60; (1998) 195 CLR 594
- Burrell v R [2007] NSWCCA 65
- Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358