Citation: R v Choi [2019] NSWSC 1715
Court: Supreme Court of New South Wales
Date: 5 December 2019
Judge: Harrison J
Background
The accused was on remand facing trial listed to commence on 24 February 2020 on charges of contravening several Commonwealth statutes, including provisions relating to weapons of mass destruction, autonomous sanctions, and United Nations Charter obligations. The allegations concerned the accused's alleged involvement in providing services related to a North Korean weapons program.
Before trial, the accused brought an application for a permanent stay of proceedings. In the alternative, he sought a stay pending assurances about the conduct of Corrective Services NSW and other state agencies.
The application was founded on two grounds: that privilege over his communications with lawyers had been, or was being, infringed; and that his limited English and restricted access to interpreters had made it extremely difficult to properly instruct his legal representatives.
Legal Issues
- Whether a permanent stay of proceedings was warranted on the basis that the accused could not freely communicate with his lawyers due to a reasonable fear that communications were being recorded or intercepted.
- Whether a stay was warranted because the accused had been unable to access an interpreter to instruct his lawyers in his preferred language (Korean).
Decision
On the first ground, Harrison J noted that the accused's lawyers had written to multiple authorities, including the Commonwealth Director of Public Prosecutions, the Commissioner for Corrective Services, the Commonwealth Attorney-General's Department, and the Australian Federal Police, seeking assurances that communications with their client had not been and would not be recorded or intercepted. Each agency responded with assurances denying involvement in any such activity.
The Commissioner for Corrective Services confirmed that legal visits and phone calls for inmates are not recorded or monitored as a general rule. The exception, applicable to the accused as a "national security interest" inmate, involved officers briefly checking phone calls to confirm they were in English and with an approved contact, but recording nothing further. Harrison J considered these assurances in light of the evidence before the court and dismissed the first ground.
On the second ground, the court observed that the accused's difficulty in accessing an interpreter was not obviously a matter attributable to the Crown, unless the prosecution was actively frustrating or interfering with such access. Harrison J acknowledged that with approximately twelve weeks remaining before trial, there was adequate time for the accused and his legal team to make the necessary arrangements. The court accepted it was imperative that the accused receive legal advice in a language he fully understood before making informed decisions about his defence.
Harrison J was not persuaded that either ground justified a permanent stay or an interim stay pending further assurances. The application was dismissed.
Orders Made
- The accused's application to stay the proceedings was dismissed.
Key Takeaways
- A reasonable subjective fear that legal communications are being monitored does not, without more, establish grounds for a permanent stay of criminal proceedings, particularly where relevant authorities have provided direct assurances against such conduct.
- Where Corrective Services NSW designates an inmate as a "national security interest" inmate, periodic monitoring of phone calls to confirm language and approved contacts is consistent with the custodial policies, but officers are not to record the content of those calls.
- Difficulty accessing an interpreter to instruct lawyers is not, without more, a matter directed at the Crown; a stay on that basis would require evidence that the prosecution was actively frustrating such access.
- In dismissing the stay application, the Supreme Court indicated that a future application to vary the hearing date might be viable if the accused and his lawyers could demonstrate they had made every reasonable effort to confer with interpreter assistance but remained unable to do so.
- The seriousness and political sensitivity of charges does not, in itself, sustain an inference that privileged communications are being unlawfully intercepted.
Legislation and Cases Referenced
Legislation:
- Weapons of Mass Destruction (Prevention and Proliferation) Act 1995 (Cth), s 11
- Autonomous Sanctions Act 2011 (Cth), s 16(1)
- Charter of the United Nations Act 1945 (Cth), s 27(1)
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 119
- Director of Public Prosecutions Act 1983 (Cth) (referenced in CDPP correspondence)
Cases cited: No cases were identified in the portion of the judgment provided.