Citation: Cherdchoochatri v R [2013] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 20 May 2013
Judge(s): Emmett JA, Simpson J, Latham J
Background
The appellant, an Australian citizen originally from Laos, pleaded guilty in the District Court to importing a marketable quantity of heroin (116.1 grams at 60.5% purity) into Australia from Cambodia. He had ingested 89 packages of heroin before boarding a flight to Sydney. The offence came to light when he was hospitalised with stomach pains and disclosed the packages to medical staff. He was 55 years old at the time of the offence, had no prior convictions, and had lived in Australia as a refugee since 1990.
At the sentencing hearing, the appellant gave oral evidence that he had committed the offence under duress, claiming he and his family had been threatened. This evidence had not been foreshadowed in any prior submissions and had not been mentioned to the psychologist who prepared a report on the appellant's circumstances. The Crown did not cross-examine the appellant on this evidence or submit that it should be given little weight.
The sentencing judge nonetheless rejected the duress evidence, erroneously attributing to the Crown a submission that the evidence deserved little weight when no such submission had been made. The judge found that the appellant had committed the offence for financial reward, not because of duress. The appellant was sentenced to six years imprisonment with a non-parole period of three years and six months. He sought leave to appeal on two grounds: denial of procedural fairness and error in failing to find duress.
Legal Issues
- Whether the sentencing judge denied the appellant procedural fairness by rejecting his uncontested evidence of duress without giving notice to the appellant that the evidence might not be accepted.
- Whether the sentencing judge erred in failing to find that the appellant had acted under duress when committing the offence.
Decision
The Court of Criminal Appeal granted leave to appeal and upheld ground one: denial of procedural fairness. The sentencing judge had rejected the appellant's oral evidence of duress without any prompt from the Crown to do so, and without signalling to the appellant or his counsel that the evidence was in doubt. The judge also incorrectly recorded the Crown as having submitted that the duress evidence deserved little weight, when no such submission had been made.
Simpson J, with whom Emmett JA and Latham J agreed, held that the absence of Crown challenge to the duress evidence made the judge's unexplained rejection of it a procedural fairness problem. A sentencing judge who proposes to reject uncontested evidence must give the party relying on that evidence an opportunity to address the proposed rejection, for example by calling corroborating evidence.
The Court noted there were legitimate reasons to be sceptical of the duress account: it had never been raised before the sentencing hearing, not even during a lengthy psychologist's interview. However, that scepticism was not shared with the parties, and the appellant was given no chance to respond. Had the judge disclosed the concern, the appellant might have been able to call additional corroborating evidence.
Because the matter was being remitted for further hearing, the Court found it unnecessary to resolve ground two. Whether the sentencing judge ultimately erred in failing to find duress would depend on all the evidence placed before the court at the rehearing, including any additional material the appellant might adduce once on notice that his evidence may not be accepted.
Orders Made
- Leave to appeal granted.
- Appeal allowed; sentence imposed in the District Court set aside.
- Proceedings remitted to the District Court for further hearing and determination (before the same judge).
Key Takeaways
- Procedural fairness in sentencing requires a judge to alert a party before rejecting that party's uncontested evidence, particularly where the Crown has made no submission that the evidence should be disbelieved or given reduced weight.
- Where a sentencing judge's proposed rejection of evidence is not foreshadowed, the party relying on that evidence is denied the opportunity to call corroborating material, which can itself constitute a denial of procedural fairness.
- A sentencing judge who misattributes a submission to the Crown, and then acts on that misattribution in reasons, compounds the procedural fairness problem by creating an inaccurate record of what was actually argued.
- The significance of duress as a mitigating factor, even where it falls short of a complete defence, is capable of materially affecting the appropriate sentence for a serious importation offence.
- In remitting the matter, the Court of Criminal Appeal found no reason to require the rehearing before a different judge, indicating that remittal to the same judge is appropriate where the error was procedural rather than indicative of bias or pre-judgment.
Legislation and Cases Referenced
Legislation:
- Criminal Code (Cth), s 307.2(1) (importation of border controlled drugs)
- Evidence Act 1995 (NSW)
Cases:
- Cameron v The Queen [2002] HCA 6; 209 CLR 339
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- Lindsay v R [2012] NSWCCA 124
- O'Neil-Shaw v R [2010] NSWCCA 42
- R v Palu [2002] NSWCCA 381; 134 A Crim R 174
- Tiknius v R [2011] NSWCCA 215