Chen v R

Case [2015] NSWCCA 122



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

  1. 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).

  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.

  3. 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.

  4. There is also an application for leave to appeal against sentence (to which I shall…

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Chen v R [2015] NSWCCA 122
Case
[2015] NSWCCA 122
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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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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