Chen v R

Case [2011] NSWCCA 145 22 June 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chen v R [2011] NSWCCA 145
Hearing dates: 30 March 2011
Decision date: 22 June 2011
Before: Simpson J at 1; Davies J at 241; Grove AJ at 242
Decision:
(1) Appeal against convictions dismissed;
(2) Leave to appeal against sentences granted;
(3) Appeals against sentence dismissed.

Catchwords: CRIMINAL LAW - particular offences - offences against the person - drug offences - Drug Misuse and Trafficking Act 1985 - one count supply traffickable quantity MDMA "ecstasy" - two counts supply large commercial quantity MDMA "ecstasy" - Form 1 possession offences
CRIMINAL LAW - appeal against conviction - trial by jury - supply prohibited drug - telephone intercepts - translation of recordings - "codes" used in supply of ecstasy - whether conversations capable of innocent construction - alternative translations - conduct of defence counsel - independent translators not called - forensic decision to limit cross-examination on translation of particular words - no miscarriage of justice - finding of guilt open on the evidence - appeal dismissed
CRIMINAL LAW - evidence - opinion rule - telephone intercepts - evidence given by police officer of "argot" of drug dealing - application of s 79 Evidence Act - specialised knowledge based on experience in drug investigations - opinion framed in terms of "consistency" - evidence properly admitted
CRIMINAL LAW - evidence - witnesses - persons criminally concerned - whether evidence of tendency - proper characterisation of evidence - relevant for another purpose - s 95 Evidence Act - appropriate directions given
CRIMINAL LAW - evidence - admission of telephone intercept recordings post-dating offences alleged - appellant not involved in conversations - relevant to the issue of joint criminal enterprise - evidence properly admitted
CRIMINAL LAW - application for leave to appeal against sentence - relevance of sentences imposed on co-offenders - no error in assessment of objective seriousness - leave granted - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Evidence Act 1995
Cases Cited: Aouad and El-Zeyat v R [2011] NSWCCA 61
Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180
Chow v R [2007] NSWCCA 225; 172 A Crim R 582
Clee v R [2009] NSWCCA 18
DAB v R; NJB v R [2010] NSWCCA 275
GAR v R (No 1) [2010] NSWCCA 163
Green v The King [1939] HCA 4; 61 CLR 167
Hristovksi v R [2010] NSWCCA 129
Jones v The Queen [1997] HCA 12; 191 CLR 439
Keller v R [2006] NSWCCA 204
Lawless v The Queen [1979] HCA 49; 142 CLR 659
Li v The Queen [2003] NSWCCA 290; 139 A Crim R 281
M v The Queen [1994] HCA 63; 181 CLR 487
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
MFA v The Queen [2002] HCA 53; 213 CLR 606
Nguyen v R [2007] NSWCCA 249

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 [2011] NSWCCA 145
Case: [2011] NSWCCA 145
Decision Date: 22 June 2011

CaseChat Overview and Summary

In Chen v R, the appellant was convicted of supplying and trafficking a trafficable quantity of MDMA, also known as ecstasy, as well as two counts of supplying a large commercial quantity of the same drug. The matter was heard in the High Court of Australia, which was asked to consider the appeal against conviction and the application for leave to appeal against sentence. The key legal issues in the case were whether the evidence of telephone intercepts and translations could be used to convict the appellant, whether the evidence was properly admitted, and whether there was a miscarriage of justice.

The court considered whether the evidence from the telephone intercepts and translations could be used to convict the appellant. It found that the evidence was properly admitted and that the translations of the intercepted conversations were not capable of innocent construction. The court also noted that the defence counsel did not call independent translators to provide alternative translations, and that the forensic decision to limit cross-examination on the translation of particular words did not result in a miscarriage of justice. The court held that the finding of guilt was open on the evidence presented.

The High Court of Australia also considered the opinion rule and whether the evidence of the police officer's "argot" of drug dealing was properly admitted. It found that the officer's evidence was properly admitted as it was based on specialised knowledge from experience in drug investigations, and that the opinion was framed in terms of "consistency" rather than a conclusion on the ultimate issue. The court also considered whether the evidence of a tendency and whether it was relevant for another purpose under s 95 Evidence Act. It found that appropriate directions were given and that the evidence was properly admitted.

The court further considered whether the evidence of telephone intercept recordings post-dating the offences alleged was properly admitted. It found that the evidence was relevant to the issue of joint criminal enterprise and that the appellant was not involved in the conversations. Finally, the court considered the application for leave to appeal against sentence and found that there was no error in the assessment of the objective seriousness of the offences. The leave was granted but the appeal was ultimately dismissed.

Orders