Chen v The Queen

[1993] HCATrans 160

..

4

• r

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M40 of 1993

B e t w e e n -

HENRY LEO CHEN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Chen 1 17/6/93

AT MELBOURNE ON THURSDAY, 17 JUNE 1993, AT 12.21 PM

Copyright in the High Court of Australia

MR D. GRACE:  If the Court pleases, I appear on behalf of

the applicant. (instructed by Grace & MacGregor)

MR B.D. BONGIORNO, OC: If the Court pleases, I appear with

my learned friend, MR P.G. LACAVA, for the Crown.

(instructed by Solicitor to the Director of Public

Prosecutions)

MASON CJ: Yes, Mr Grace?

MR GRACE:  Your Honours, this application for special leave

to appeal raises two questions of law.

MASON CJ: Yes, we have read the outline.

MR GRACE:  The first matter I seek to draw the Court's

attention to is the comments by Your Honour the

Chief Justice and Your Honour Justice Deane and also Justice Brennan in Butera v The DPP, (1987)

164 CLR 180, particularly at page 184. In the

second substantive paragraph on page 184,

Their Honours said this, at about the sixth or seventh line down from the top of that second

paragraph:

The courts have now accepted tape recordings

as evidence of the conversations or other

sounds recorded on the tape: see, among other

cases -

and then a number of cases are listed -

which canvass the conditions on which a tape

recording may be admitted in evidence. It is

unnecessary now to consider those conditions

but it is obvious that the provenance of the

tape recording must be satisfactorily

established before it is played over to the

jury.

In the next paragraph, and leaving approximately

10 lines, at five lines from the bottom:	A tape recording may be used to produce a form
of evidence which is different from both oral
_testimony and documentary evidence. The rules

- which govern the admission in evidence of tape recordings and the procedure to be followed by

a court in ascertaining what is alleged to	have been recorded on them must be moulded so
as to deal with the technical and logical
conditions which must be satisfied before a tape recording can furnish proof of what is
recorded.

Chen 2 17/6/93

Now, the Court did not consider the conditions that

would govern admissibility; however, English and

United States authorities have done so in recent

years.

MASON CJ: But are you not confronted with admissions in

this case as to the contents of the tape

recordings?

MR GRACE:  No, with respect. What the applicant is

confronted with is this: the defence conceded that
the voices on the tapes were those that the Crown

alleged, namely, in relation to the tape that is

known·as exhibit 137, Wilson and Chen, and in

relation to the tape that is known as 148, Middap·

and Chen. Furthermore, in relation to the

Wilson/Chen tape, the applicant conceded that the

recording "seems to be the conversation I had";

those were the actual words he gave in unsworn

evidence at the first trial.

MASON CJ: Well, is that not good enough?

MR GRACE: Well, in the submission of the applicant, it is

not. The applicant did not concede the accuracy of

the recordings.

GAUDRON J: But there was additional evidence, the purport of which was that one might accept that there had

been no tampering with the tapes anyway.

MR GRACE:  There was expert evidence that was called - I

think Your Honour is referring to that evidence -

which could not exclude the possibility that there

had been tampering but, on the other hand, could

find no evidence of the tampering.	So that one was
left with that position.

The further matters were these: that the

makers of the tape alleged by the Crown were Wilson

and Middap. Wilson was dead, and he was dead at

all material times and therefore unable to give

evidence as to the making of the tape; and Middap,

although available to be called, was treated by the

Crown as being unreliable and, on the first trial,

had refused to give evidence. Both were

arch-criminals having extensive criminal records

and-one could imagine that some suspicion would

arise in considering their evidence as to the

making of the tapes. ·

In those circumstances, and bearing in mind

that the applicant never conceded the accuracy of the tapes, it is submitted that the learned trial judge erred in admitting into evidence the tape

recordings.

Chen 17/6/93

In the outline of submissions, there are a

number of cases referred to, including the decision

of the English Court of Criminal Appeal in Reg v

Maqsud Ali; also the decision of the Federal

Appeals Court in the United States in United States v Biggins. If I could refer to that last mentioned

case just briefly, which is reported at (1977)

551 F 2nd 64 at 66, in the first paragraph on

page 66, the court says this:

Admitting sound recordings into evidence

at a criminal trial presents discrete dangers

to which courts have been justly sensitive.

in the oft-cited case of United States v

McKeever, the court established seven criteria

as conditions precedent to admitting sound

recordings. The Eighth Circuit has recently

adopted that test in the context of electronic

monitoring.

United States v McMillan is referred to. The

footnote referred to at the end of that paragraph

sets out the criteria that were established in

McKeever and McMillan, and those seven criteria

specify:

(1) That the recording device was capable of

taking the conversation now offered in

evidence.

There was no possibility of that evidence being

brought to the court in this case.

(2) That the operator of the device was

competent to operate the device.

Similarly, there was no evidence capable of being

brought to the court in relation to that point.

(3) That the recording is authentic and

correct.

Now, that, it is submitted, should have been within

the province of the trial judge to determine, not

for the jury.

_(4) That changes, additions or deletions have

- not been made in the recording.

Again, that fell within the province of the trial judge, it is submitted.

(5) That the recording has been preserved in a

manner that is shown to the court.

Now, in relation to that aspect, the experts gave

evidence that in-relation to the Middap tape, that

Chen 17/6/93

appeared to be an original tape; however, in

relation to the Wilson tape, this was a second or
third generation tape, namely a copy tape, so

questions of preservation and continuity could not

be proved.

(6) That the speakers are identified.

There was clear evidence that that had occurred.

(7) That the conversation elicited was made

voluntarily and in good faith, without any

kind of inducement.

In Reg v Cotroni, 93 DLR (3d) 161, a decision of the Supreme Court of Canada, at page 168

His Honour Mr Justice Pigeon considered the issues

of originality and authenticity in relation to tape

recordings. His Honour quoted with approval, at

pages 167 and 168, the statement of principle by

Halsbury and McCormick in relation to the

admissibility of original documents and sought to

apply that principle to the admission of tape

recordings.

If I could refer the Court to page 168 and the

second substantive paragraph on that page

commencing with the words:

However, the counsel of prudence mentioned by

Halsbury accords with the principle stated by

McCormick's Handbook of the Law of Evidence,

2nd ed (1972), p 571:

If the original document has been destroyed by
the person who offers evidence of its
contents, the evidence is not admissible

unless by showing that the destruction was

accidental or was done in good faith, without

intention to prevent its use as evidence, he

rebuts to the satisfaction of the trial judge,

rebuttal of the inference of fraud, which had been Now, in the absence of the witness Wilson, the any inference of fraud.

suggested in terms of the applicant suggesting that

the tape had been doctored, was not rebutted, and
it was for the trial judge to determine that issue

and not for the jury, it is submitted.

Furthermore, on page 169, His Honour had

quoted with approval the Federal Court view
expressed in the case of United States v Knohl and
the last quoted paragraph on page 169 says this:

We are not unmindful, however, that tape recordings are susceptible to alteration and

Chen 17/6/93

that they often have a persuasive, sometimes a

dramatic, impact on a jury. It is therefore

incumbent on the Government to produce clear

and convincing evidence of authenticity and

accuracy as a foundation for the admission of

such recordings; and where the court accepts

them as authentic and accurate but the

evidence is conflicting on these points, it

must caution the jury to scrutinize the

evidence with care.

Such clear and convincing evidence was not in

existence in this case, it is submitted. There was

insufficient material before the trial judge to

allow him to determine the question of authenticity

and that ought to have been a precursor to the

admissibility of the tape recordings. As a result,

it is submitted that the tapes were not admissible

and the learned trial judge erred in admitting them
into the case and a grant of special leave is

justified to consider the important questions

raised by the case, together with the general

conditions on which a tape recording may be

admitted into evidence. The Court will recall that

in the paragraph that I read to Your Honours from

Butera, that issue was left unresolved in Butera.

That is all I wish to say, Your Honours, in

relation to the question of the tape recordings.

If I can now proceed to the issue of sentence.

The issue concerns whether the sentence passed at

the first trial upon the applicant should be

regarded as a ceiling for the second trial judge in

the exercise of his discretion. I have set out a

table on page 4 in paragraph 18 of the outline of

submissions as to the relative lengths of sentences
actually to be served by the applicant following

both trials.

In the first trial he received four and a half

years which, after remissions, is converted to

three years, with a minimum of two years, which is
converted to 16 months.	He also had to be credited

in his favour - and this was accepted by the Court

of Criminal Appeal - a period of six months, being

pre-release. That left a sentence to be served of

10 months. The second trial judge imposed a

sentence of four years with a minimum of 20 months,
which is not subject to remission, and therefore

the period of time that he is requi~ed to serve is

20 months.

What had occurred between the first trial and

the second trial was the proclamation of the

Sentencing Act 1991 on 22 April 1992, and that had

the effect of abolishing remissions. However, by

the operation of section 10, which I have attached

Chen 6 17/6/93

as an appendage to the outline of submissions, a

court must take into account the effect of

section 10 at the time that it imposes sentence

and, particularly, the abolition of remissions.

This question has been considered by a number

of courts of criminal appeal throughout Australia.

There are differences of opinion that have been expressed. In New South Wales and in Western

Australia the approach adopted is that the sentence imposed at the first trial is the prima facie

sentence to be imposed. In Victoria and South

Australia the approach adopted is that the trial the second occasion. judge is at large when it comes to sentencing on

The leading case in New South Wales is

Gilmore, (1979) 1 A Crim R 416. In that case,

His Honour the Chief Justice as he then was,

Sir Laurence Street, identified, at pages 419 to

421, a number of reasons why it was a sound

principle of sentencing that ordinarily an accused

should not receive a longer sentence or non-parole

period on any subsequent trial than those following

upon the first trial.

In paragraph 13 of the outline of submissions

I have encapsulated those reasons as being three:

firstly, that a person should not be required to

run any risk of suffering a heavier sentence on a

new trial as a consequence of exposing on appeal

the defective nature of the first trial, and that

is as a matter of fairness; secondly, that defects

in trial should be challenged and laid bare on

appeal, and this is in the public interest, in the

proper administration of the criminal justice

system and in the development of the criminal law

through the appellate process; and thirdly, the

perception that the passing of a heavier sentence

on a retrial may impart an element of retribution

by the criminal justice system.

In Gilmore, His Honour considered the decision of the South Australian Supreme Court in Garrett

and at page 420, half-way down the page, His Honour

said this:

Neither counsel's researches nor my own

have discovered any decisions specifically on

this point other than one in South Australia (Garrett). The matter, of course, would not arise in England.

The reason for that, Your Honours, is because there

is a statutory regime in England, which is set out

on page 419 in Gilmore, which provides in the

Criminal Appeal Act that the sentence on a retrial

Chen 17/6/93

attracts a ceiling of the sentence on the first

trial. But continuing on, on page 420, His Honour

says:

The South Australian decision is the only

reported Australian case in this area. That
was a case stated in which the question asked

was whether " ... the Judge upon the re-trial in

any way or in any circumstances [is]

constrained in his imposition of sentence by

the sentence imposed by the Judge on the

original conviction?"

MASON CJ:  You do not need to read that. The answer was no.

MR GRACE:  The answer was no, and a similar answer was

reached by the Full Court of the Supreme Court of

Victoria in the case of Emery, which is an unreported decision of the Court of Criminal Appeal

delivered on 11 April 1979, and I have provided to

the Court copies of that decision. At pages 6 to

7, His Honour the Chief Justice, Sir John Young,

the then Chief Justice, with whom

Justices Menhennitt and Jenkinson agreed, said that

a second sentencing court is at large.

It may be thought that His Honour the

Chief Justice of the Supreme Court of New South

Wales, Sir Laurence Street, in the later case of

Bedford, (1987) 28 A Crim R 311, retreated somewhat
from the comments that he had made in Gilmore.

However, a close analysis of what His Honour said

in Bedford, in my submission, does not bear that

out. Towards the bottom of page 316 in Bedford,

this is the second substantive paragraph from the

bottom of the page, His Honour said this:

It is perhaps appropriate to make some

reference to exactly what was decided in

Gilmore. There had in that case been a

retrial ordered from a first trial in respect

of which there was no suggestion that the

sentences passed were other than entirely
appropriate for the criminality involved. In
the course of my judgment in that case I said:

"It is a sound principle of sentencing that,

--on a new trial consequent upon the quashing of

a conviction by the Court of Criminal Appeal,
the accused should ordinarily not receive a
longer sentence or non-parole period than

those following upon the first trial."

Begg J dissented from the principle just

stated; Lusher J expressed his agreement with

it. It is significant to emphasise that the

enunciation of the principle includes "should

Chen 17/6/93

ordinarily not receive". The word

"ordinarily" must be given full room to

operate. It might perhaps have been

preferable to have expressed this as a prima

facie approach rather than elevating it to a

principle.

And then His Honour goes on to say that, even given

the prima facie approach, a second trial judge, if

he considers the circumstances of the case justify

a departure from the prima facie approach:

He is both at liberty ..... to give effect to

his own assessment.

But an important rider, and this appears on the

second line of page 317 where His Honour said:

It could be expected, however, that; if he did take the view that a longer sentence were

called for than that passed at the first

trial, then there would be a specific

indication of the reasons leading him to this

view.

Now, His Honour the learned trial judge in the

second trial did not state any reasons for

departing from the first sentence other than to say

he was not bound by it. In the Court of Criminal

Appeal the court came to the conclusion that it

would appear, although it is perhaps difficult to

glean from what appears to be some conflicting

statements made in the course of the judgment, that
a sentencing judge on the second occasion must, or
should, take into account or have regard to the

sentence imposed on the first trial.

Although the Court of Criminal Appeal appears

to have come to the conclusion that the learned

trial judge on the second trial was in error in not

having regard to the first sentence, it

nevertheless came to the conclusion that a

different sentence should not have been passed.

The Court of Criminal Appeal did not state, in its

reasons for that particular conclusion, that it had
had regard to the earlier sentence passed.

Finally, in Western Australia, in the decision of Williams, (1981) 5 A Crim R 81, His Honour

Chief Justice Burt, at page 83, considered the decisions in Gilmore and in Garrett.

MASON CJ: That is set out, is it not, at pages 136 and 137

of the application book?

Chen 9 17/6/93

MR GRACE:  Yes, it is. However, there is just one matter r

wish to highlight in relation to that issue,

Your Honour, and that is that at page 84 of

Williams, the learned Chief Justice said this in

the third line:

In addition he will have regard to the

sentence imposed upon the first conviction and

he will be conscious of the principle,

so-called, "that unless there is some strong

ground there should not be a disparity between

the sentence imposed upon persons convicted on
the second occasion after a retrial compared

with those that were imposed upon them on the

first occasion" -

He refers to an unreported decision of the Court of

Criminal Appeal of Western Australia of Leary and

Compt. His Honour Mr Justice Wickham, at page 85,

concurs with the principles enunciated by the

learned Chief Justice.

In the applicant's case, the Court of Criminal

Appeal identified yet another consideration that would work in favour of imposing a sentence which

has a ceiling. At pages 137 and 138 of the

application book, the court referred to the analogy

that could be drawn to the principle of double

jeopardy in so far as it applies to Crown appeals

against sentence. The court was mindful that it
was applicable to the case of the applicant that he

was exposed to the double jeopardy of having a penal sanction delivered on one occasion being

increased on another, and that was a matter that

ought to mitigate the sentence.

The finding that. the Court of Criminal Appeal

made - and I will come to this as a result of what

I mentioned earlier - that the learned sentencing

judge ought to have had regard to the actual period

of incarceration to be served in addition to the

length of sentence first imposed, its finding that

a difference sentence should not have been passed

is, in my submission, in error.

This finding begged the question as to whether

the circumstances of the case justified a departure

from-the prima facie approach enunciated in

Gilmore, Bedford and Williams. Furthermore, at 139

of the application book, the Court.of Criminal

Appeal made a finding that the two trials were

conducted significantly differently.

In my submission, that is an incorrect

finding, for this reason: the unsworn evidence

given in the first trial was read into the second

trial. At the second trial the applicant stood

Chen 10 17/6/93

mute. The evidence given at both trials was very

similar, the trial duration was very similar, the

first trial being, I think, 39 days, the second

trial being 37 days. There is nothing in the

conduct of the second trial that would have

justified the learned sentencing judge in taking a

worse view of the applicant than that taken by the

first sentencing judge.

It is submitted finally, Your Honours, that

the New South Wales approach, as enunciated in

Gilmore and Bedford, is the preferred approach. It

is the preferred approach because it is based on

fairness. It is also consistent with other
principles of the administration of the criminal
justice system which perhaps do not relate directly

to the accused.

In conclusion, it is submitted that a grant of

special leave is justified to resolve these

differences of opinion that are occurring between

different intermediate appellate courts throughout

Australia and that the interests of the administration of justice, both generally and in

this particular case, justify the grant of special

leave. If the Court pleases.

MASON CJ:  Thank you, Mr Grace. Mr Bongiorno, we do not

want to hear you on the point going to conviction,
but we do want to hear you on the point going to

sentence.

MR BONGIORNO:  If the Court pleases. I feel constrained to

point out to the Court on commencing that there is
an error at the bottom of page 138 in the Full
Court's judgment:

It may be suggested that an incongruity here arises in that at the time the first

sentence was passed, the sentencing Judge was

not permitted to have regard to remissions.

That is not correct. Section 60 of the Corrections

Act at the time required the judge to have regard

to remissions but not to the pre-release scheme,

not to the next - briefly the remission system was

that a third came off. There was a further gloss

on ~fiat called the pre-release scheme which in

certain cases - I think it was over two years

imprisonment - you could get six months off, called

pre-release leave. Section 60 of the Corrections Act legislatively overruled a previous Full Court decision called Yates which said that courts should

not look at remissions and said that they should,

but did not extend to the pre-release scheme.

Chen 11 17/6/93

The Crown says that in this case, the Court of

Criminal Appeal has dealt with the alleged

discrepancy between the various State approaches to this matter by analysing them and in terms agreeing with them, but there is no conflict between the

Victorian court and the other courts in Western

Australia or New South Wales. In each instance

where Their Honours have referred to those courts,

they have quoted passages - - -

MASON CJ: They seem to have agreed with everyone,

Mr Bongiorno, and endorsed their own decision in

Emery which seems to have been inconsistent.

MR BONGIORNO:  They have. It is a question of application,

in our submission, Your Honour. In this instance the Court of Criminal Appeal in effect said, "The

principles enunciated by the other courts are not

contestable, but in this instance, it being a prima

facie approach, the appropriate sentence was the

sentence passed by the second judge". In

particular, of course, they relied upon the

appellate jurisdiction which they exercised which was dependent upon their coming to the conclusion

that a different sentence ought to have been

passed. So that there is not, in our submission,

anything in the Full Court judgment which leads to

a suggestion that it is erroneous.

MASON CJ:  You mean as a matter of principle, you are

talking about at the moment?

MR BONGIORNO:  Yes, as a matter of principle. What the

court is saying is that it accepts the proposition

that as a prima facie situation or as a first

starting point, the second court should sentence
not more heavily than the first, but that in this

instance, and having regard to its obligations as

an appeal court secondly, it could not come to the

conclusion that a different sentence should have

been passed and that accordingly there was no error

for it to correct.

GAUDRON J:  One has to read into that then, does one,

Mr Bongiorno, that the first sentence was manifestly inadequate?

MR BONGIORNO~- No, I would, with respect, not concede that

that would necessarily follow.

GAUDRON J:  What other basis could there then be for the

decision?

MR BONGIORNO:  It would differ from the ordinary appeal

situation where a court of criminal appeal would be

required to find manifest inadequacy or manifestly

excessive sentence, because what it is doing is

Chen 12 17/6/93

looking at the second sentence and saying, "Were

there reasons for this judge, applying the

principle from the other cases in the other States

which the court says it accepted, was there

sufficient reason consistent with the sentencing

discretion, for the second judge to sentence in the

way he did and, in any event, are we satisfied in

the terms of section 568, do we think, to use the

words of the section, that a different sentence

should have been passed or a different order made?"

Now, this Court has said that it did not and,

accordingly, it is constrained by its own appeal

powers to come to the conclusion that it did.

GAUDRON J: But what can be the basis for the court having

come to the conclusion that it did not think a

different sentence should have been passed, if it

were not that the first sentence was inadequate?

MR BONGIORNO:  I would, with respect, concede inadequacy but not necessarily appealable manifest inadequacy.

GAUDRON J: Well, then, I wonder to what extent the

principles that the court said it was adopting or

agreeing with have play.

MR BONGIORNO: Well, Your Honour, I think if I might

illustrate the difference by saying that if the

first sentence was manifestly inadequate and was

therefore appealable at the instance of the Crown,

that is one thing. Looking at the second sentence,

the Court of Criminal Appeal has to give due weight

to the fact that the second sentencing judge is.·
exercising an independent sentencing discretion.

And only one of the matters that he has to take

into account is the sentence which was originally

imposed by the first judge. So that the Court of

Criminal Appeal does not have to come to a view
that the first judge was manifestly inadequate in

order to find that the second judge was within

the - - -

GAUDRON J: But then I wonder what scope the principles

have, if that is not the finding.

MR BONGIORNO:	The principle has the scope which is, in our submission, given to it by Chief Justice Street in
Bedford's case, that it is a position which would
be ordinarily taken but can be departed from. As His Honour said, the word "ordinarily" must be
given its full meaning, full room to operate, as he
says.
GAUDRON J:	So on that basis, one then comes to an

extraordinary situation to depart from it.

Chen 13 17/6/93

MR BONGIORNO: Well, extraordinary in the strict use of the

word "extraordinary" but not - yes, I would have to

concede that the only word that fits the opposite

of "ordinary" in the circumstances is

"extraordinary", but in the total context of the

way in which this principle has been adumbrated in

those cases, it is an exercise of a sentencing

discretion into which.one factor, perhaps an

important factor, perhaps a factor which ordinarily
ought to hold sway in accordance with

Chief Justice Street's judgment, is the sentence of

the original judge. But more than that, it is a
matter for the sentencing discretion of each

individual judge on the retrial.

DEANE J:  Is not the force of the Full Court judgment to be

found at page 139 in the sentence beginning

line 20?

MR BONGIORNO:  Yes.

DEANE J: Well, if that is so, is not what the Full Court is

saying this, that the principle that the second
sentence does not exceed the first sentence need
not be followed if the trial judge thinks the first

sentence was "too lenient".

MR BONGIORNO: Yes, well, that is simply a recognition,

Your Honour, of the nature of the sentencing

process.

DEANE J: Yes, I should not have said "principle", the

approach. It makes the approach rather

meaningless, though, does it not? I mean, why

would he or she impose a heavier sentence than the

first sentence if he did not think the first

sentence was too lenient? I am sorry, or she.

MR BONGIORNO: Yes. In Victoria it is still only the first,

Your Honour. Clearly that is so, but all he is

exercising - unless, in our submission, I suppose

to put it the other way, unless the court is

prepared to elevate the prima facie approach to a

principle which ought not to be departed from other

than in what might be said to be extreme

circumstances, then the proper exercise of the

sentencing discretion by the second judge requires

him-to form a view as to whether a particular

sentence is too lenient or too severe and obviously

that would involve him saying, at l~ast

subconsciously, that which the first judge imposed

was too lenient, which is why I am imposing more.

DEANE J: But it all becomes a bit of a hall of mirrors,

does it not, if you really say that if he or she

thinks that the first sentence imposed was too

lenient, he or she imposes a heavier sentence.

Chen 14 17/6/93

MR BONGIORNO:  A heavier sentence. Well, that simply gives

- I suppose, Your Honour, without conceding that it

is a hall of mirrors, what in fact the argument

boils down to is: what weight is to be given to

the first judge's sentence and how is that weight

to be accounted for in the second judge's sentence.

The Crown's position on this instance is that the

principle is recognized by the Court of Criminal

Appeal and has been applied in this case by the sentencing judge and the Court of Criminal Appeal

and that, whilst there might be a difference of

opinion by an appeal court with the way in which

that second sentencing discretion is exercised, the

fact that - provided it is exercised within

principle, then it is just that, it is an exercise

of discretion.

DEANE J: What if one were to think that in the context of

all the considerations weighing against increasing

a sentence on a second trial when the sentence on

the first trial has been set aside on the basis

that the trial miscarried by reason of unfairness

to the accused, that the appropriate approach was

that the first sentence should only be exceeded if

it was obviously and manifestly, in the sense of

appealably, excessive.

MR BONGIORNO: That would, in our submission, be putting the

matter higher than - - -

DEANE J: But it would mean that the court had fallen into

error in this case, would it not, on your

submission?

MR BONGIORNO:  If it was expressed as highly as that, and

that is the proposition that Justice Gaudron put to
me earlier, yes, if it had to be manifestly

inadequate. But, in our submission, that leaves no

room effectively for the exercise of the second

discretion and that is - - -

DEANE J: Yes, it does. It leaves room for the trial judge

to look at the first sentence, in the absence of

the facts in the second trial being clearly

different from the facts in the first trial, to

look at the sentence and to say, "Well, I'll need

very_strong reasons before I'll even contemplate
givlng the accused a heavier sentence as a result

of him having succeeded in his appeal against the

verdict in the first trial". · ·

MR BONGIORNO: Well, it is as that point that the question

of principle operates, in our submission.

DEANE J:  I am not suggesting what I am putting to you is

correct, I am just trying to work out where we are

going.

Chen 15 17/6/93

MR BONGIORNO:	Your Honour has, with respect, identified the area, namely the weight ultimately which is given.
Now, as I say, the Crown's position here is that
the law is clear, as accepted by the Court of
Criminal Appeal in this State and the other States,
and it is simply a question of its application and
that there is no error in its application in this
instance.  I do not think there is anything further
that I can assist the Court with.
MASON CJ:	We will adjourn now and resume at 2 o'clock.

AT 1.03 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

MASON CJ: Yes, Mr Grace.

MR GRACE:  Thank you, Your Honour. It is submitted that the

development of the common law is dependent upon

determinations by intermediate courts of appeal. Any course that would inhibit the development of

the law in this manner is to be guarded against, in

my respectful submission. Unless there are

extraordinary circumstances, the first sentence

should always be a ceiling, in my submission, and

there were no such extraordinary circumstances in

this case. As His Honour Chief Justice

Sir Laurence Street said, in Gilmore, at page 420,

at line 4:

it is wrong that any person should suffer

ill-founded criminal judgment in consequence

of a defective trial, and feel constrained to

avoid exposing that defect lest on a new trial

a heavier sentence be passed.

I wanted to just advise the Court of two

factual matters that may be of assistance.

Firstly, in relation to the first appeal to the

Court of Criminal ~ppeal, which followed the first
conviction, there was no appeal against any

inadequate sentence imposed by the first trial

judge by the Director. Secondly, Ln relation to

the table that is included at paragraph 18 of the

outline of submissions, when one works backwards as

to what the maximum on the second trial was worth

in pre-Sentencing Act terms, that was worth a

maximum of six years with a minimum of 30 months,

and that would be the appropriate comparison. So,

in terms of the head sentence one is talking about

Chen 16 17/6/93

a third more and in respect of the minimum

sentence, 50 per cent more, without taking into

account the issue of pre-release.

There was no basis, it is submitted, in fact,

for the trial judge reaching the conclusion that he

did at the end of the second trial as to the

sentence imposed, and the Court of Criminal Appeal

also. And it is submitted that both the learned

trial judge and the Court of Criminal Appeal were

not entitled to depart from the principle that the

first sentence should, prima facie, have been the

ceiling to have been imposed.

Moreover, neither the second judge nor the

Court of Criminal Appeal stated any reasons for

departing from that prima facie approach, and the inference that is drawn at the paragraph adjacent

to line 20 on page 139 of the application book is,

in my respectful submission, not supported by any

facts. It is merely speculation, it is submitted,

and it could not have been safely inferred by the

Court of Criminal Appeal that that was the case indeed.

In the ordinary case, it is submitted that the

second trial judge could always exercise a

discretion to reduce the sentence. In fact,

His Honour Sir Laurence Street, the Chief Justice

of New South Wales, did advert to that particular

aspect in Gilmore. So that although one could say

that the first sentence may be viewed as a ceiling,

the second sentence could nevertheless be less, in

the exercise of the discretion but, in my

submission, unless there are extraordinary

circumstances, could not be more. If the Court

pleases.

MASON CJ: As to the proposed appeal against conviction, in

the light of the evidence, including the expert

evidence, we are not persuaded that the decision of

the Court of Criminal Appeal is attended with

sufficient doubt to justify the grant of special

leave.

As to the proposed appeal against sentence,

the Court of Criminal Appeal approached this matter
on the basis that ordinarily the sentence imposed

following a re-trial should not be heavier than

that imposed following the first trial. The word

"ordinarily" in that context clearly means "in the
absence of extraordinary circumstances". There are

very strong reasons why a sentencing judge should

observe that approach. The Court of Criminal

Appeal said of the offence in this case, and I quote from page 140 of the application book,

line 4:

Chen 17 17/6/93

"In those circumstances, an attempt

dishonestly to obtain about $350,000
constitutes an offence of such seriousness as
to call for a sentence of considerably more
than 10 months' imprisonment, unless the
personal circumstances of the offender, or

other unusual factors in the case, justify the

extension of great leniency.	No such
justification here exists."

In the light of the approach which it adopted, those remarks clearly indicate that, in the view of the Court of Criminal Appeal, there was such an

unjustifiable disparity between the offence and the

sentence as to justify the course taken. That

being so, we are not persuaded that there was any

error of principle. The application for special

leave to appeal is therefore refused.

AT 2.08 PM THE MATTER WAS ADJOURNED SINE DIE

Chen 18 17/6/93