AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 7 February 2011

R v Minh CHEUN

[2011] NSWCCA 5

Drugs
CRIMINAL LAW SENTENCING CROWN APPEAL SENTENCE REDUCED BY ASSISTANCE PARTIAL FAILURE TO PROVIDE ASSISTANCE S 21E CRIMES ACT (CTH)

Citation: R v Minh CHEUN [2011] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 7 February 2011
Judges: Simpson J, Price J, Garling J

Background

The respondent pleaded guilty to attempting to possess a commercial quantity of ecstasy (257,200 tablets, with an estimated street value of $40 million) imported into Australia from Canada. He had come to Australia specifically to oversee collection and distribution of the consignment. The sentencing judge in the District Court imposed a term of 17 years and 6 months with a non-parole period of 11 years, incorporating a 20% discount for past and future co-operation pursuant to an undertaking under s 21E of the Crimes Act 1914 (Cth).

The respondent signed a formal undertaking to give full and frank evidence against co-accused and to co-operate with the Australian Federal Police and prosecutors. He conferred with lawyers, gave evidence over three days at committal proceedings in the Local Court, but then declined to continue on the fourth day. The Crown argued this refusal was highly significant: it caused the prosecution case against two co-accused to fail entirely.

The Crown appealed under s 21E, seeking to increase the sentence by removing the 2 years and 6 months discount that had been allowed for future co-operation. The respondent's answer was that he had a reasonable excuse for stopping his evidence: his mother's address in China had been left in his statement when it was served on the co-accused, in breach of applicable court rules, and he feared for his family's safety.

  • Whether the respondent's failure to continue giving evidence constituted a partial failure to co-operate with his undertaking under s 21E of the Crimes Act 1914 (Cth).
  • Whether the Crown established beyond reasonable doubt that the respondent's failure to co-operate was without reasonable excuse.
  • Whether the prosecution's failure to excise the respondent's mother's address from his statement before serving it on the co-accused (in breach of r 12 of the Local Courts (Criminal and Applications Procedure) Rule 2003) could amount to a reasonable excuse for the respondent's non-cooperation.

Decision

The Court confirmed the established position that, on a Crown appeal under s 21E, the onus rests on the Crown to prove beyond reasonable doubt that the offender's failure to co-operate was without reasonable excuse. This follows the earlier decisions in R v YZ [1999] NSWCCA 263 and R v Springer [2009] NSWCCA 144. The Crown offered no reason to depart from that line of authority.

Rule 12 of the Local Courts (Criminal and Applications Procedure) Rule 2003 (which applied at the time) required that a statement served on an accused in committal proceedings must not disclose the address of the maker or any other living person, unless the address was materially relevant to the evidence or a magistrate made a disclosure order. The Court found it difficult to see how the respondent's mother's address in China was materially relevant to the committal evidence. No magistrate made a disclosure order, and no consideration was given by either the prosecutor's solicitor or the Federal Police to their obligations under r 12 or to the respondent's safety concerns.

Price J rejected the Crown's suggestion that the respondent should have flagged the address issue to the Federal Police before the statement was served. The respondent had no reason to anticipate that his mother's address would be left in the served copy. The court found that the respondent's heightened fear for his family, which arose directly from the prosecution's failure to comply with r 12, amounted to a reasonable excuse in the circumstances of this case. Accordingly, the Crown had not discharged its burden of proof beyond reasonable doubt, and the appeal was dismissed.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • On a Crown appeal under s 21E of the Crimes Act 1914 (Cth), the onus lies on the Crown to prove beyond reasonable doubt that the offender failed to co-operate without reasonable excuse.
  • Where a prosecution authority's own procedural breach founds the offender's fear that gave rise to non-cooperation, a court may find that breach provides a reasonable excuse, making it impossible for the Crown to discharge its onus.
  • Rule 12 of the Local Courts (Criminal and Applications Procedure) Rule 2003 imposed a clear obligation to excise personal addresses from statements served on accused persons in committal proceedings, subject to limited exceptions requiring a specific magistrate's order.
  • The Court of Criminal Appeal declined to depart from the line of authority established in R v YZ and R v Springer placing the beyond-reasonable-doubt burden on the Crown in s 21E appeals.
  • An offender's ignorance that their address would be disclosed without excision cannot be held against them: the obligation to comply with the rule rested on the prosecution, not the witness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 21E
- Criminal Code 1995 (Cth), ss 11.1(1) and 307.5(1)
- International Transfer of Prisoners Act 1997 (Cth)
- Local Courts (Criminal and Applications Procedure) Rule 2003 (repealed 18 December 2009), r 12

Cases:
- R v YZ [1999] NSWCCA 263
- R v Springer [2009] NSWCCA 144
- DPP (Cth) v Haunga [2001] VSCA 73