Chen v R

Case [2015] NSWCCA 122 29 May 2015

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Chen v R
Medium Neutral Citation:	[2015] NSWCCA 122
Hearing Date(s):	23 March 2015
Decision Date:	29 May 2015
Before:	R A Hulme J at [1]; Davies J at [82]; Bellew J at [83]
Decision:	1. Leave to appeal against conviction granted. 2. Appeal dismissed. 3. Leave to appeal against sentence refused.
Catchwords:	CRIMINAL LAW – appeal against conviction – obtaining a benefit by deception – attempt to obtain a benefit by deception – Criminal Code ss 134.2, 11.1 – whether trial judge erred in giving consciousness of guilt direction – potential for circular reasoning – consciousness of guilt direction not necessary – error established – no risk jury would engage in improper reasoning process – no substantial miscarriage of justice – appeal dismissed CRIMINAL LAW – appeal against sentence – obtaining a benefit by deception – attempt to obtain a benefit by deception – whether error in assessment of objective seriousness – reference to involvement of innocent third parties – where offences part of an elaborate scheme of fraud – no error established – leave to appeal refused
Legislation Cited:	Crimes Act 1914 (Cth) s 16A(2) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules r 4 Criminal Code (Cth) ss 11.1, 134.2
Cases Cited:	Edwards v The Queen [1993] HCA 63; 178 CLR 193 Gall v R; Gall v R [2015] NSWCCA 69 R v Lane (No 13) [2010] NSWSC 1540 R v Lane [2011] NSWCCA 157; 221 A Crim R 309 R v Laz [1998] 1 VR 453 R v Lucas (1981) 1 QB 720 R v Mercer (1993) 67 A Crim R 91 R v Sirillas [2006] VSCA 234 R v Wang, (Court of Criminal Appeal (NSW), 11 February 1994, unrep) R v Zheng (1995) 83 A Crim R 572
Category:	Principal judgment
Parties:	Julian Chen (Applicant) Regina (Respondent)
Representation:	Counsel: Mr P Lange (Applicant) Mr C O’Donnell (Crown) Solicitors: Hanna Legal Commonwealth Director of Public Prosecutions
File Number(s):	2010/12462; 2010/12505
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	7 June 2013
Before:	Huggett DCJ
File Number(s):	2010/12462; 2010/12505

JUDGMENT

R A HULME J: Julian Chen ("the applicant") was found guilty by a jury on 14 March 2013 of 23 offences of obtaining a benefit by deception (s 134.2 of the Criminal Code (Cth)) and 4 offences of attempting to obtain a benefit by deception (ss 11.1 and 134.2).
Her Honour Judge Huggett sentenced the applicant on 7 June 2013 to a total term of imprisonment for 10 years with a non-parole period of 6 years.
The sole ground of appeal against conviction is that the judge erred in permitting the jury to use the applicant’s evidence as being evidence of consciousness of guilt if it concluded that his evidence was false, even though such a conclusion would invariably mean the prosecution had proven its case.
There is also an application for leave to appeal against sentence (to which I shall…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen v R

Details

AGLC: Chen v R [2015] NSWCCA 122
Case: [2015] NSWCCA 122
Decision Date: 29 May 2015

CaseChat Overview and Summary

The appellant, Chen, appealed against his conviction and sentence for obtaining a benefit by deception and attempting to obtain a benefit by deception, contrary to sections 134.2 and 11.1 of the Criminal Code. The case was heard in the High Court of Australia. The primary issue before the court was whether the trial judge erred in giving a consciousness of guilt direction to the jury. The appellant argued that the direction had the potential for circular reasoning, and that it was not necessary in this case. The court found that while an error had been established, it did not result in a risk that the jury would engage in an improper reasoning process. Furthermore, it was determined that no substantial miscarriage of justice had occurred, and the appeal against conviction was dismissed.

The court also considered the appellant's challenge to the sentence imposed. Chen argued that the trial judge erred in assessing the objective seriousness of the offences by referring to the involvement of innocent third parties. The court held that the offences were part of an elaborate scheme of fraud, and no error was established in the assessment of the objective seriousness of the offences. As a result, leave to appeal against the sentence was refused. The appellant's appeal against both conviction and sentence was ultimately unsuccessful, and the decision of the lower court was upheld.

Orders