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Court of Criminal Appeal 24 September 2015

Cheih-Wei Lin v R

[2015] NSWCCA 264

Drugs
CRIMINAL LAW APPEAL ERROR ESTABLISHED ORDERS OF PRIMARY JUDGE QUASHED

Citation: Cheih-Wei Lin v R [2015] NSWCCA 264
Court: Court of Criminal Appeal, NSW
Date: 24 September 2015
Judge(s): Hoeben CJ at CL; RA Hulme J; Bellew J

Background

The applicant was arrested in February 2014 and refused bail in connection with charges of importing methylamphetamine into Australia, contrary to the Criminal Code 1995 (Cth). She had been in continuous custody from arrest. A trial date of 19 October 2015 was set in the District Court in April 2015, at which point the estimated trial length was three weeks. The applicant's solicitors had made arrangements for family members and a witness to travel from Taiwan to attend the trial, purchasing non-refundable airfares.

Shortly before the trial was due to commence, the Crown applied to vacate the trial date. The Crown had recently filed a new indictment adding charges against the applicant and a co-accused, anticipated that a former co-accused would now give evidence for the prosecution, and indicated that substantial further material remained to be served. The Crown estimated the trial would now take six weeks.

The primary judge, Judge Townsden, granted the Crown's application and vacated the trial date. Consequential orders were made requiring the Crown to serve outstanding material and a tendency notice within weeks of the vacation. The applicant sought leave to appeal that decision to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether the primary judge erred in the exercise of his discretion in vacating the trial date on the Crown's application.
  • Whether the primary judge gave adequate weight to the consequences for the applicant, including her extended period in pre-trial custody, and the disadvantage to her family and witness caused by the vacation.
  • Whether the primary judge's finding that the District Court had "no capacity" to deal with a six-week trial was supported by evidence.

Decision

Bellew J (with Hoeben CJ at CL and RA Hulme J agreeing) found that the primary judge had erred in the exercise of his discretion. The primary judge had acknowledged the significance of the applicant's extended time in custody, describing the situation as "very much a concerning situation," but then gave primacy to the change in trial estimate when exercising his discretion. The court found this approach was unreasonable and plainly unjust.

Two particular failures in the primary judge's reasoning were identified. First, the primary judge made no reference in his reasons to the financial and logistical disadvantage the vacation would cause to the applicant's overseas family members and witness. Those matters had been squarely raised in submissions and were clearly relevant to the discretionary exercise. Bellew J concluded they had not been taken into account.

Second, the primary judge found there was "simply no capacity" for the court to deal with a six-week trial in place of a three-week trial. That finding was not supported by any evidence before him. While a lengthened trial estimate can affect administrative arrangements, the complete absence of evidentiary support for such a finding was, in Bellew J's view, a further reflection of the failure to properly exercise the discretion.

RA Hulme J added observations about the broader context. While acknowledging that there is no common law right to a speedy trial (applying Jago v District Court of New South Wales), his Honour described it as "untenable" that a person presumed innocent could spend well in excess of two years on remand awaiting trial. His Honour also noted the growing delays in the District Court's capacity to finalise criminal matters and identified those delays as contrary to the public interest.

Orders Made

  • The orders of the primary judge are set aside.
  • The matter is remitted to the District Court of New South Wales for trial commencing on 19 October 2015.

(Note: Leave to appeal was granted and the appeal was allowed. The court observed that whether the Crown could rely on material or notices yet to be served would be a matter for the trial judge.)

Key Takeaways

  • A primary judge's discretion to vacate a trial date on the Crown's application must give genuine weight to the consequences for the accused, including the duration of pre-trial custody and logistical disadvantage to defence witnesses.
  • Where a primary judge identifies relevant factors raised in submissions but makes no reference to them in his reasons, an appellate court may infer those factors were not taken into account, supporting a finding of error under the House v R standard.
  • A finding that a court has "no capacity" to deal with a lengthened trial must be supported by evidence; an unsupported assertion of incapacity is insufficient to carry weight as a discretionary consideration.
  • The Court of Criminal Appeal confirmed that, while there is no common law right to a speedy trial (Jago v District Court), the prospect of an accused person remaining on remand for well over two years while awaiting trial is a matter of serious concern to the proper administration of justice.
  • Growing delays in the District Court's ability to finalise criminal matters were described by RA Hulme J as a matter of considerable public concern, affecting accused persons on remand, victims of crime, and the viability of prosecutions that depend on witness memory.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Code 1995 (Cth)

Cases
- House v R [1936] HCA 40; (1936) 55 CLR 499 (standard for appellate review of discretionary decisions)
- Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23 (no common law right to a speedy trial)
- Pirrottina v R (1996) 88 A Crim R 220
- R v Alexandroaia (1995) 81 A Crim R 286
- R v Balic (1994) 75 A Crim R 509
- R v Yuill (1993) 69 A Crim R 450