Citation: Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 3 April 2013
Judge(s): Basten JA (primary judgment); Hall J and Beech-Jones J (agreeing)
Background
NSW Police searched a Waterloo apartment in December 2009, discovering firearms, accessories, pseudoephedrine, and a large quantity of cash. One appellant (referred to here as the first appellant) lived at the apartment and was convicted of weapons offences and knowingly taking part in the supply of drugs. The other appellant (referred to here as the second appellant) faced charges relating to items found in a locked bedroom of the same apartment and was convicted of weapons offences and drug supply.
Both appellants had been compelled to appear before the NSW Crime Commission prior to trial. The Commission made a non-publication direction covering the second appellant's examination. Despite this direction, the Commission provided both appellants' interview transcripts to the Director of Public Prosecutions before trial. The Director of Public Prosecutions conceded that the provision of those transcripts was unlawful.
A key Crown witness, Brendan Pak, gave evidence connecting both appellants to the pseudoephedrine supply. Pak was a witness who could reasonably be supposed to have been criminally concerned in the events underlying the trial, which engaged specific reliability warning obligations under the Evidence Act 1995 (NSW).
Legal Issues
- Whether the prosecution's possession and use of the unlawfully disclosed Crime Commission transcripts denied the appellants a fair trial or created a miscarriage of justice.
- Whether the trial judge gave adequate directions to the jury about the unreliability of Brendan Pak's evidence.
- Whether the verdicts were unreasonable and unsupported by the evidence.
- Whether the trial judge misdirected the jury on joint possession in relation to counts charging individual possession (counts 5 and 8 against the second appellant).
- Whether the trial judge gave erroneous directions on the second appellant's possession of drugs found in the laundry (count 6).
- Whether the prosecutor impermissibly relied on "consciousness of guilt" reasoning in breach of the trial judge's directions.
Decision
Unlawful disclosure of Commission transcripts. The Court held that the unlawful release of the transcripts did not produce a miscarriage of justice for either appellant. For the second appellant, the compelled documents had been independently found during the police search and were available for tender in any event. Nothing in his transcripts related to how the trial actually ran. For the first appellant, no actual unfairness arose from the dissemination of his interview: there was no authority for the proposition that mere prosecutorial possession of inadmissible material renders a trial unfair, no objection was taken at trial despite full knowledge of the prosecution brief, and no objective unfairness was demonstrated in the conduct of the proceedings.
Jury directions on Brendan Pak's reliability. The Court found that the trial judge's summing-up, read as a whole, left the jury in no doubt about the dangers of relying on Pak's evidence. Pak had changed his account after threats of prosecution and in circumstances suggesting a financial benefit, and the judge referred to these concerns multiple times. While the judge might have been more emphatic, the omission was of limited significance and did not produce a misdirection.
Unreasonable verdicts. Leave to appeal on this ground was refused for the second appellant, and the ground was rejected for the first appellant. The Court reiterated that the appellate function is to review the facts, not merely to ask whether there was evidence capable of supporting a verdict. On the evidence, including the physical connection between items found in each appellant's respective areas of the apartment, the verdicts were not unreasonable. The first appellant, in particular, did not discharge the statutory onus of establishing he lacked knowledge of the firearms found in his laundry.
Directions on possession and consciousness of guilt. The Court rejected the remaining grounds concerning joint possession directions and consciousness of guilt reasoning. The jury directions were examined in context and found not to have misled the jury as to the basis on which it could convict on the individual counts.
Orders Made
• The orders proposed by Basten JA are agreed with
Key Takeaways
- Unlawfully disclosing Crime Commission transcripts to a prosecutor does not automatically produce a miscarriage of justice; an appellant must demonstrate actual, practical unfairness arising from that disclosure in the conduct of the trial.
- Where no objection is taken at trial despite full knowledge of the material in the prosecution brief, that failure is itself fatal to a miscarriage of justice ground on appeal when no actual unfairness is shown.
- A non-publication direction under s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) does not, on its own terms, extend to prohibit all dissemination to the prosecutor; the proper consequences of a breach depend on whether the breach caused prejudice in the proceedings.
- In dismissing the appeal on the unreasonable verdict ground, the Court confirmed that appellate review requires genuine factual evaluation rather than a bare inquiry into whether evidence capable of supporting a verdict existed, but equally does not require exhaustive re-agitation of every argument run at trial.
- Where a trial judge's summing-up repeatedly and clearly alerts the jury to the dangers of a witness's evidence, the absence of a formal Longman-style warning does not necessarily constitute reversible error, provided the jury's attention is adequately drawn to reliability concerns.
Legislation and Cases Referenced
Legislation
- New South Wales Crime Commission Act 1985 (NSW), ss 3, 3A, 5A, 6, 7, 8, 13, 16, 18, 18B, 24, 25, 27A, 29, 32
- Evidence Act 1995 (NSW), s 165
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 12
- Director of Public Prosecutions Act 1986 (NSW), s 15A
- Firearms Act 1996 (NSW)
- Weapons Prohibition Act 1988 (NSW)
- Crime Commission Act 2012 (NSW)
- Australian Crime Commission Act 2002 (Cth), s 25A
Key Cases
- Baini v The Queen [2012] HCA 59; 87 ALJR 180
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- Fox v Percy [2003] HCA 22; 214 CLR 118
- Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188
- Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258
- Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23
- Dietrich v The Queen [1992] HCA 57; 177 CLR 292
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1