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Court of Criminal Appeal 23 June 2015

Lee v R; Tang v R

[2015] NSWCCA 157

Drugs
APPEAL CONVICTION APPEAL ACCUSED HEALTH WHETHER RIGHT TO APPEAL WHETHER APPELLANTS WERE “CONVICTED”

Citation: Lee v R; Tang v R [2015] NSWCCA 157
Court: Court of Criminal Appeal, NSW
Date: 23 June 2015
Judge(s): Basten JA; Garling J; Hamill J

Background

Two appellants were convicted by a jury in the District Court following a 72-day trial on charges of conspiring to possess a commercial quantity of unlawfully imported border-controlled drugs (heroin and methamphetamine) under the Commonwealth Criminal Code. They were among four co-accused tried together before Sweeney DCJ. The jury returned guilty verdicts against both appellants on 17 October 2014, while continuing its deliberations on the remaining co-accused.

A significant portion of the evidence at trial consisted of English-language transcripts of intercepted telephone conversations. These conversations had originally occurred in a foreign language, and the transcripts were placed before the jury in written form only. They were not read aloud during the proceedings.

After the jury returned its verdicts against the appellants, the trial judge received a note from the foreperson raising concerns about one juror ("Juror X"). The foreperson reported that Juror X appeared to be practically illiterate and had also been suffering from a serious health condition throughout the trial. The trial judge questioned Juror X and, ultimately, discharged him. The discharge occurred after the verdicts against the appellants had already been delivered, while the jury was still deliberating on a co-accused.

  • Whether the appellants were "convicted" within the meaning of the Criminal Appeal Act 1912 (NSW) so as to enliven the Court of Criminal Appeal's jurisdiction under s 5(1).
  • Whether the presence of a practically illiterate juror on the jury that delivered guilty verdicts constituted a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912.
  • Whether illiteracy is a proper ground for discharging a juror under s 53B of the Jury Act 1977 (NSW).
  • Whether the proviso under s 6(1) of the Criminal Appeal Act 1912 (which allows a court to decline to quash a conviction despite a miscarriage if no substantial miscarriage occurred) could apply in the circumstances.

Decision

Jurisdiction: Were the appellants "convicted"?

The Court accepted that the appellants had been "convicted" for the purposes of s 5(1) of the Criminal Appeal Act 1912, thereby granting the Court jurisdiction to hear the appeals. All three judges agreed that once the primary judge proceeded to sentence the appellants, this constituted an unequivocal acceptance of the jury verdicts, satisfying the statutory definition of "conviction."

The illiteracy ground: Was there a miscarriage of justice?

The Court held that the presence of a practically illiterate juror during the trial amounted to a miscarriage of justice. The key factor was that the evidence in the case included a substantial volume of written material: English translations of intercepted foreign-language telephone conversations that were placed before the jury in written form only and never read aloud. An illiterate juror could not meaningfully engage with that evidence.

The Crown did not contest the outcome. It conceded that Juror X's incapacity to read the intercept material had deprived the appellants of a fair trial. All three judges agreed this concession was well-founded and that the miscarriage represented "such a serious breach of the presuppositions of the trial" that the convictions could not stand.

The proviso: Could the Court decline to quash despite the miscarriage?

The Court rejected any application of the proviso under s 6(1) of the Criminal Appeal Act 1912. The Crown itself acknowledged there was no room for the proviso to operate. The Court accepted this position, finding the miscarriage too fundamental to the integrity of the trial to be set aside as insubstantial.

Orders Made

  • The convictions of both appellants, resulting from the jury verdicts of guilty pursuant to the indictment dated 8 November 2013, were quashed.
  • A suppression order was made prohibiting publication of the appellants' names or any identifying information until the completion of any further proceedings on the charges against them.

Key Takeaways

  • The Court of Criminal Appeal confirmed that "conviction" for the purposes of s 5(1) of the Criminal Appeal Act 1912 is established once the sentencing judge has proceeded to sentence an accused, as that step constitutes unequivocal acceptance of a jury verdict.
  • A practically illiterate juror's participation in a trial involving substantial written evidence constitutes a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912, particularly where key evidence was made available to the jury in written form only.
  • Under s 53B of the Jury Act 1977 (NSW), illiteracy may ground a discretionary discharge of a juror, even where the juror himself did not concede any inability to participate. The trial judge noted that a juror may be reluctant to acknowledge such a limitation.
  • The proviso to s 6(1) of the Criminal Appeal Act 1912 (which permits a court to affirm a conviction notwithstanding a miscarriage if there was no substantial miscarriage) has no application where the integrity of the trial process has been fundamentally compromised.
  • Where key evidence in a criminal trial is presented exclusively in written form, the capacity of each juror to read and engage with that material is directly relevant to whether the accused received a fair trial.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 2, 5, 5D, 6
- Jury Act 1977 (NSW), ss 22, 53A, 53B, 73
- Jury Amendment Act 2008 (NSW)
- Jury Amendment Act 2010 (NSW)
- Criminal Code (Cth), ss 11, 307
- Proceeds of Crime Act 1987 (Cth), s 30
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 8, 9

Cases:
- Weiss v The Queen [2005] HCA 81; 224 CLR 300
- Cesan v The Queen [2008] HCA 52; 236 CLR 358
- Brownlee v The Queen [2001] HCA 36; 207 CLR 278
- R v Petroulias [2007] NSWCCA 134; 73 NSWLR 134
- Smith v Western Australia [2014] HCA 3; 250 CLR 473
- Griffiths v The Queen (1977) 137 CLR 293
- Della Patrona v Director of Public Prosecutions (Cth) [No 2] (1993) 38 NSWLR 257
- Frodsham v O'Gorman [1979] 1 NSWLR 683
- Director of Public Prosecutions (Vic) v McCoid [1988] VR 982