Cherdchoochatri v R
[2013] NSWCCA 118
•20 May 2013
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Cherdchoochatri v R [2013] NSWCCA 118 Hearing dates: 27 March 2013 Decision date: 20 May 2013 Before: Emmett JA at [1]; Simpson J at [12]; Latham J at [65] Decision: (i) Leave to appeal granted;
(ii) Appeal allowed, sentence imposed in the District Court set aside;
(iii) Proceedings remitted to the District Court for further hearing and determination.
Catchwords: CRIMINAL LAW - appeal - sentencing - severity - plea of guilty - import marketable quantity of border controlled drug (heroin) - whether applicant was denied procedural fairness in that the sentencing judge failed to warn that he did not accept the uncontested evidence of duress - whether sentencing judge erred in failing to find that the applicant had acted under duress when he committed the offence for which he stood for sentence - Ground 1 made out - appeal allowed - matter remitted for further hearing in District Court Legislation Cited: Criminal Code (Cth)
Evidence Act 1995Cases Cited: Cameron v The Queen [2002] HCA 6; 209 CLR 339
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Lindsay v R [2012] NSWCCA 124
O'Neil-Shaw v R [2010] NSWCCA 42
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
Tiknius v R [2011] NSWCCA 215Category: Principal judgment Parties: Gulachat Cherdchoochatri (Applicant)
Regina (Respondent)Representation: Counsel:
D Barrow (Applicant)
L Crowley (Respondent)
Solicitors:
Legal Aid Commission NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2011/90778 Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2011-10-14 00:00:00
- Before:
- Bennett DCJ
- File Number(s):
- 2011/90778
Judgment
EMMETT JA: The applicant has sought leave to appeal against the severity of the sentence imposed upon him in the District Court, following his plea of guilty to a charge that he imported into Australia a marketable quantity of heroin. He claims that he was denied procedural fairness in the course of the sentencing hearing.
Before giving oral evidence at the sentencing hearing, the applicant provided written submissions to the District Court. The submissions raised, as a mitigating factor on sentence, duress falling short of defence to criminal liability. However, while the submissions referred to the relevant legal principles and the authorities supporting those principles, they made no mention of the factual basis upon which the Court should make a finding of duress.
In the course of the sentencing hearing, the applicant gave evidence of duress that was brought to bear upon him prior to the commission of the offence. The applicant had given no prior notification of the facts about which he gave oral evidence. In the course of oral address, the applicant's counsel referred to the issue of duress. After referring briefly to the applicant's evidence as to duress, his counsel commented that that evidence was not challenged by the Crown.
The submission was made on behalf of the applicant by his counsel that, while he was to receive a financial gain for the importation of the heroin, he was motivated by duress. His counsel referred specifically to the unchallenged evidence that the applicant and his family had been threatened. Neither the Crown nor the sentencing judge made any response or comment about that submission.
Despite the fact that the Crown had not made any submissions as to the weight to be given to the applicant's evidence of duress, the sentencing judge in his reasons erroneously referred to a submission by the Crown that little weight should be given to the applicant's evidence regarding threats. His Honour was troubled by one aspect of the evidence, namely the contention that the applicant was threatened and beaten, and yet then participated in the criminal enterprise with the expectation of a monetary reward of $1,500.
The sentencing judge said that, in his assessment, the truth was somewhere between "the two extremes". His Honour accepted that there was a level of anxiety or fear on the part of the applicant that his family would be put at risk, were he to disclose to the authorities that he was conveying the heroin into Australia. However, his Honour was not satisfied that the applicant had embarked upon the criminal enterprise because of that anxiety. His Honour found that the applicant "was, upon his own admission, doing so for anticipated financial reward".
The grounds of appeal relied on by the applicant were as follows:
- The applicant was denied procedural fairness in that the sentencing judge failed to warn him, or those acting for him, that he did not accept the uncontested evidence of duress.
- The primary judge erred in failing to find that the applicant had acted under duress when he committed the offence for which he stood sentence.
I have had the advantage of reading in draft form the reasons of Simpson J. I agree with her Honour's conclusion that the applicant should have leave to appeal, the appeal should be upheld and the matter should be remitted for further hearing before the sentencing judge.
In particular, I agree with her Honour that, in circumstances where the Crown did not seek to test the applicant's evidence concerning the alleged duress, and the sentencing judge did not make clear that the applicant's evidence of duress should not be accepted, the applicant was denied procedural fairness. The sentencing judge did not give any indication of his view of the applicant's evidence of duress by, for example, drawing attention to the apparent absence of any mention by the applicant, prior to his evidence on sentencing, of the alleged duress, such as during his interview with a psychologist, Mr Howard. No suggestion was made to the sentencing judge that the applicant's evidence of duress should not be accepted, though the sentencing judge apparently believed, erroneously, that the Crown had made a submission that that evidence should be given little weight. If, notwithstanding that the Crown made no submission, his Honour proposed to reach a conclusion on the assumption that that evidence was not to be accepted, procedural fairness required that his Honour give the applicant notice of that rejection. His Honour failed to do so.
Had the applicant, or his advisors, been informed that his evidence as to duress would not be accepted, it might have been possible for him to call additional evidence by way of corroboration. In the circumstances, I agree Simpson J's conclusion that ground 1 is made out. I agree with her Honour that the matter should be remitted to the District Court for further consideration. I agree that there is no reason why the matter should not be further considered by the same judge.
In the circumstances, it is unnecessary to deal with ground 2. Whether there was error in failing to find that the applicant acted under duress would be dependent upon what further evidence, if any, might be adduced by the applicant upon being informed that his evidence as to duress may not be accepted. Whether or not a finding should be made that the applicant acted under duress in committing the offence with which he was charged would depend upon an assessment of all of the material before the sentencing judge.
SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court on 14 October 2011 following his plea of guilty to a charge that he imported into Australia a marketable quantity of a border controlled drug (heroin).
By s 307.2(1) of the Criminal Code (Cth) such an offence carries a maximum custodial penalty of imprisonment for 25 years. Bennett DCJ sentenced the applicant to imprisonment for 6 years (commencing on 19 March 2011) with a non-parole period of 3 years and 6 months.
The facts
The facts were put before the sentencing judge by way of an agreed statement, which disclosed the following. The offence was committed on 18 March 2011. On that day the applicant, who is an Australian citizen, flew into Australia from Cambodia, where he had been holidaying for some weeks. Prior to leaving Cambodia he had ingested a quantity of packages (or "balloons") of heroin. Notwithstanding the presence of the heroin in his body, the applicant was cleared by Customs and returned to his home in Cabramatta. The offence was discovered because the applicant began to suffer stomach pains, and was taken by ambulance to the Liverpool Hospital in the early hours of 19 March. There he told medical staff that he had swallowed the packages of heroin. During that day and the next a total of 89 packages passed through the applicant's body. They contained a net weight of 116.1 grams of heroin of 60.5 per cent purity. Between 2 grams and 1.5 kilograms of heroin constitutes a marketable quantity.
During this process, on 19 March 2011, NSW Police attended the hospital and formally took the applicant into custody. The applicant informed police that he had passed a number of packages during the flight to Sydney and had flushed them down the lavatory. He also told police that he had been promised an amount of money (apparently then unspecified) for involving himself in the importation. Early that evening, he was transferred into the custody of Australian Federal Police ("AFP"). He agreed to participate in a recorded interview, but was unable, for medical reasons, to do so while at the hospital. No such interview ever took place.
The applicant's personal circumstances
Evidence of the applicant's personal circumstances was given by way of some medical reports and a report of a psychologist (Mark Howard). Although the applicant gave evidence in the sentencing proceedings, his evidence was not directed to his personal circumstances. I will return to the evidence he gave, and to the content of Mr Howard's report.
The applicant was born the first of three children in October 1955 in Laos, and was therefore 55 years of age at the time of the offence. He has no prior convictions. Both parents died when he was 10 years old, and he and his younger siblings were allocated to separate foster homes. The applicant relocated to live with a family in northern Thailand. There he had his first real education. He was able to catch up with other children of his age. He worked as an auto electrician in Thailand. He has not had any contact with his siblings since their separation, despite a number of efforts on his part to trace them.
In 1990 (aged about 35) he was accepted into Australia as a refugee, and eventually settled in Cabramatta. He has there worked as an auto electrician, although without formal qualifications. He has had some periods of unemployment as a result of injuries suffered in the workplace.
He was first married in about 1993. In about 1995 a son was born. The applicant and his wife separated in about 2000 or 2001 and divorced in 2006. The son remains dependent or partially dependent upon him.
He married again. There are two daughters of this marriage, one of whom, it seems, lives in Cambodia. (As the sentencing judge noted, the evidence concerning this child is unclear.) The younger child is now three or four years of age.
The applicant has some health problems. He has lost half of a finger on the left hand, and has, as a result of cataracts, lost vision in his right eye; the vision in his left eye is blurred. He suffers hypertension and high cholesterol levels, and has, since his incarceration, more than once been hospitalised (at external hospitals).
The sentencing proceedings
At the commencement of the sentencing hearing, immediately after the applicant's plea of guilty was taken, and the documents constituting the Crown case were tendered in evidence, counsel for the applicant also tendered a bundle of documents. This bundle consisted of a character reference and some medical reports of which no further mention need be made. Tendered separately was the report of the psychologist, Mr Howard. Counsel for the applicant also at that time handed up written submissions. Written submissions on behalf of the Crown had been included in the material already provided. It was after that that the applicant gave evidence.
The applicant gave his evidence through an interpreter. There are indications in the transcript of the proceedings that the interpreter's grasp of English, and of his role as a court interpreter, was less than optimal. The evidence given by the applicant was directed to the circumstances in which he committed the offence, of which he gave an elaborate account. The first question asked of him in this respect was:
"Q. How is it that you ended up bringing drugs back to Australia in your stomach?"
to which he is recorded (as interpreted) as saying:
"A. Because I'm kind to everyone and friendly with everyone."
He then proceeded to give a more detailed account of how he became involved. He said that he travelled with his wife and younger daughter for a holiday in Cambodia. He said that, shortly before he was due to depart, a person he had met "a few times" in a shopping centre in Cambodia took him home for a farewell party. This person asked him to carry a package to Australia; he said that initially he refused to do so. The man then told him that on delivery of the package he would be given $1500. He said that he commented that that was a lot of money and asked whether the parcel was heavy. The man told him that it was not heavy, but was worth $15,000. He said that he replied that if the parcel was not heavy he would carry it for no reward. He said that he asked if it was illegal and was told that it was. He said that he then refused, and was "arrested" or "captured" (words used by the interpreter) by two persons who told him that he could not return to Australia empty handed, he had to take something with him. He continued to refuse. As a result, the men beat him with a bamboo stick on his back. One of the men told the other man not to harm the applicant, but threatened to do harm to members of the applicant's family who were in Cambodia, including his wife. Because of the importance of his family to him, the applicant then agreed to take the parcel. The transcript of evidence (as interpreted) is as follows:
"Q. Then what happened after they made that threat?
A. Are you going to accept it or not accepting it.
Q. Then what happened?
A. At that instant moment I will make a decision because my family is most important to me.
Q. What happened next?
A. And then I agree to accept the parcel."
The men then forced a pipe or tube into his throat, and then the "balloons". The applicant resisted, by removing the tube. About 110 or 120 "balloons" were inserted into the applicant's body.
At the direction of the men, the applicant gave them his telephone number. They told him not to speak to anyone, either in Cambodia or Australia, at risk of "trouble for both side[s]". After a few minutes they covered his face with a cloth and took him back to his accommodation.
He said that he did not report these events to Cambodian authorities because of the fear of harm to his family; he was also afraid to speak to Australian authorities and was, in addition "half semi conscious" on arrival in Australia. He feared that "the balloon had burst".
The applicant was cross-examined by prosecuting counsel. She did not challenge the applicant's evidence about the circumstances in which he came to have swallowed the drug, but established that the applicant knew that what he was doing was both dangerous and illegal. She confirmed that the applicant had been told that when the drugs were delivered he could receive a financial reward of $1500. She then put to him this question:
"So you not only swallowed the drugs because of the threats, but also because you were to receive a financial benefit?"
It is to be noted that she did not suggest that financial reward was the applicant's sole motivation for participation.
In answer to some questions from the sentencing judge, the applicant said that he had been told that he would be contacted in Australia, and that "they would contact me and take me to somewhere to take it out", and that, altogether, about six people had been present when the drugs were forced into his mouth.
He said that, after his arrest, an unknown person had on two or three occasions telephoned his wife, but when she told the person that he was in gaol, the calls ceased.
At the outset of the hearing, both counsel provided to the sentencing judge comprehensive written submissions. It is of some significance that both sets of submissions were prepared in advance of the applicant's evidence. Those provided on behalf of the Crown included the following:
"12 There is no independent evidence available to establish the exact role of the Offender in this importation, other than his actions in importing the drugs. The Crown submits that it is open to the Court to find that the Offender performed the role of courier. In performing that role, the Crown submits that the Offender did the following things:
...
13 The Crown submits that the foregoing demonstrates that the Offender played an essential role in the importation of the border controlled drug.
...
· Financial gain
21 The offence was committed for financial gain. On 19 March 2011 the Offender participated in a record of interview with the AFP. At this time he told the AFP that he was to be paid $15,000 (sic) for swallowing the tablets." (italics added)
The assertion that the applicant had participated in a recorded interview with AFP was contrary to what was contained in the agreed statement of facts put before the sentencing judge, which makes it plain that on 19 March 2011 the applicant gave limited information to NSW Police, and, although willing to participate in a formal interview, was unfit to do so. The disclosures (to NSW Police, not AFP) that are in the statement of facts attributed to the applicant are that he was to be paid an amount (unstated) of money for swallowing the "balloons" and bringing them into Australia, that he had been travelling with his wife and young daughter, and that he had passed 19 objects while in the custody of NSW Police. The reference to a reward of $15,000 is inconsistent with the transcript, which records the applicant as saying that he was promised $1500.
There was, in the Crown's written submissions, no reference to any evidence, or question, of duress.
The written submissions filed on behalf of the applicant in the sentencing proceedings contained a section headed "Duress". They addressed authorities concerning the relevance of duress falling short of a defence to criminal liability as a mitigating factor on penalty. They were confined to the relevant legal principles: they made no mention of any factual basis upon which the judge would be asked to make a finding of duress.
The oral submissions made on behalf of the Crown were extremely brief. Counsel pointed out that the crime was a very serious one, and called for a sentence that incorporated a measure of deterrence. She described the quantity of drugs as "significant". She said:
"It would be my submission, as Mr Cherdchoochatri said in evidence, that he knew what he was doing was illegal and that the offence was committed for a financial gain."
She made no mention of the applicant's evidence concerning the threats and physical coercion. She did not suggest that that evidence ought not be accepted.
In her oral submissions, counsel for the applicant again referred to the issue of duress. Those submissions included a brief review of the applicant's evidence and:
"So it seems, and it's unchallenged by the Crown, that he was offered this reward before he realised what was involved. While he was to receive a financial gain I'd say that this case stands apart from all the cases I've handed up and that the Crown have handed up, in that that wasn't the motivating factor. He was motivated by the duress even though he was to receive the financial gain. He's given unchallenged evidence about being held down by two men, evidence of being threatened and his family being threatened. His wife is a Khmer Australian but he's given evidence that she had family in Cambodia. So I'd ask your Honour to consider that in relation to duress, motivation or reward, this case stands apart from other cases."
These submissions were put on the assumption that the applicant's evidence of the circumstances in which he came to ingest the drugs would be accepted. Given the absence of any cross-examination challenging the applicant's evidence, that assumption was not misplaced. Neither Crown counsel nor the judge made any response or comment with respect to the submission.
The Remarks on Sentence
The sentencing judge recited the facts and the applicant's personal circumstances in a manner which has attracted criticism in only one respect. That one respect is his treatment of the applicant's account of and explanation for his participation. That is the basis of the sole ground of appeal originally filed. Having recounted, in some detail, that explanation, the judge said:
"The Crown submits that little weight should be given to the representations regarding threats by those involved in the importation of these drugs.
I have been troubled by one aspect of the evidence. It seems odd that there would be a threat following a beating, whilst at the same time the offender would be a participant in the enterprise expecting a reward of $1500.
In my assessment of the matter the truth is somewhere in between the two extremes. I accept that there was a level of anxiety or fear in the offender that his family in Cambodia, and his family in Australia, would be put at risk were he to disclose to authorities in Cambodia or here that he was conveying this heroin into this country. However, I am not satisfied - even on the balance of preponderances - that he engaged upon this enterprise because of that anxiety. He was, upon his own admission, doing so for anticipated financial reward."
The sentencing judge then allowed a reduction in the sentence of 25 per cent in recognition of the applicant's plea of guilty: see Cameron v The Queen [2002] HCA 6; 209 CLR 339. He proceeded to impose the sentence mentioned above.
The grounds of appeal
Initially, only one ground of appeal was filed. It was in the following terms:
"The applicant was denied procedural fairness in that the sentencing judge failed to warn him, or those acting for him, that he did not accept the uncontested evidence of duress."
On the hearing of the appeal, leave was granted to the applicant to rely on an additional ground, in the following terms:
"Ground 2: His Honour erred in failing to find that the applicant had acted under duress when he committed the offence for which he stood for sentence."
The Crown did not dispute that evidence that may amount to evidence of duress (falling short of duress that would or could amount to a defence against criminal liability) may be taken into account for the purposes of sentencing: see Tiknius v R [2011] NSWCCA 215 at [30]-[54]. In my opinion, the evidence given by the applicant fell into that category. It was capable, if accepted, of impacting significantly on the assessment of the applicant's moral culpability.
The submission advanced on behalf of the applicant on the appeal was encapsulated in written submissions in the following terms:
"28 The issue of duress was clearly raised by the applicant. The evidence he gave was not inherently implausible. In the absence of challenge by the Crown, the sentencing judge was not entitled to reject or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course." (italics added)
On behalf of the Crown, on the appeal, two primary submissions were made. The first was to dispute the premise which underlies the original ground of appeal, that is that the Crown did not challenge the applicant's evidence. It was submitted that the Crown did challenge the applicant's evidence; to this end, reliance was placed on the following question asked of the applicant in cross-examination:
"Q. So you not only swallowed the drugs because of the threats but also because you were to receive a financial benefit?",
and submissions to the sentencing judge to similar effect - that financial gain was the applicant's motive.
This submission is unpersuasive. Neither the question nor the submissions amounted to a challenge to the applicant's evidence of his treatment in Cambodia. Indeed, the question concerning the applicant's motivation carried in it a plainly implied acceptance that the applicant had been threatened as he described, and that the threats had been a motivating factor in his engagement in the offence, together with the prospect of financial reward. No demur was made to the description of the applicant's evidence of threats by counsel for the applicant, in submissions, as "unchallenged".
The second matter put by the Crown was that the judge did not reject the evidence of duress, but rather was not satisfied that the threats were the motivation for the offence. It was pointed out, correctly, that in this respect the applicant bore an onus of proof. It is correct that there was no explicit rejection of the applicant's evidence about what had happened to him in Cambodia. It is also true that, at least by clear implication, the judge rejected the applicant's evidence that it was the coercion and violence that had motivated him to agree to the importation.
The Crown argued that the judge was not bound to make the finding urged on behalf of the applicant. For this proposition, the Crown relied upon the decision of this Court in Lindsay v R [2012] NSWCCA 124. Lindsay is not authority for that proposition. In that case, which has some similarities to the present, as well as some significant differences, the offender also sought to rely on duress as a mitigating factor. He gave some detailed evidence about a drug debt and intimidation. That evidence was the subject of challenge in cross-examination (see [11]). The offender also read affidavits deposed by family members in England, who were not available for cross-examination. The Crown made submissions concerning the weight that could be attributed to the affidavit evidence, given its inability to cross-examine. In those circumstances, the offender in Lindsay was in no doubt that the judge would be invited to, and might, reject his evidence. He therefore had the opportunity to put any argument available to him in response. Moreover, the substance of the sentencing judge's reasons for declining to mitigate the penalty by reason of the evidence of duress was not that she entirely rejected the evidence, but that she considered it insufficient to explain, in a way that mitigated his culpability, the seriousness of the crime.
The first part of the proposition put here on behalf of the applicant is that, in the absence of challenge by the Crown to the applicant's evidence of what motivated him, the judge was not entitled to reject it. In the third paragraph of the extract above from the sentencing Remarks is an acceptance that the applicant experienced "a level of anxiety or fear" that his family would be put at risk - but the acceptance was expressed to be acceptance that they would be put at risk if he were to disclose to authorities in either country that he was conveying the heroin, and did not address the applicant's evidence that his family would be put at risk if he declined to comply with the demands of the men. There is no acceptance that the applicant experienced fear or anxiety for the safety of his family, or that that acted on his mind, in his decision to ingest the drug. There is clear rejection of that proposition.
That Lindsay does not stand as authority for the proposition put (that the judge was not bound to make the finding urged by the applicant) does not carry the necessary consequence that the proposition is incorrect. It is necessary to examine whether it is.
The applicant's evidence was plainly directed to establishing that the reason for his participation in the offence was the duress to which he claimed to have been subjected. He explicitly and unequivocally said that he made the decision to participate because of the threats to his family. It is true that his Honour did not expressly reject this. But in focusing only on financial gain, and in disregarding the applicant's evidence concerning his motivation, his Honour plainly, if implicitly, rejected that evidence.
The present issue is whether, in the absence of notice given by the Crown to the applicant that his evidence was in contest, the judge was entitled to take that course.
Counsel for the applicant relied upon two paragraphs from the decision of this Court in O'Neil-Shaw v R [2010] NSWCCA 42 (per Basten JA). Those paragraphs are in the following terms:
"26 Statements of general principle must be understood in their context. Nothing in the statement set out above from Chow [see below] should be understood as inconsistent with the obligation of the sentencing judge to impose the appropriate sentence, based on the evidence properly before the court. As explained by Howie J in Palu [see below], the factual basis should be identified with particularity and disputed facts resolved by the accusatorial process upon the evidence before the court. Where the evidence was not challenged or disputed by the prosecution, and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course.
27 It is a basic rule of procedural fairness that a party who does not accept the evidence of a witness should put the alternative view in cross-examination, both so that the witness may respond and so that the court has the benefit of assessing the response ... Where there has been no cross-examination of witnesses to contest their evidence 'judges should in general abstain from making adverse findings about parties and witnesses': MWJ v The Queen [2005] HCA 74; 80 ALJR 329 at [39] (Gummow, Kirby and Callinan JJ)." (bold added; one internal reference omitted)
The "statements of general principle" to which Basten JA referred appear in paras [23] and [24], preceding the paragraphs relied on on behalf of the applicant. The first is drawn from Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, in which Kirby P set out principles governing the functions of prosecutors and judges involved in sentencing proceedings. The fifth principle is in the following terms:
"The foregoing rules do not oblige a sentencing judge passively, and unquestioningly, to accept facts as the basis for sentencing which are presented by the prosecution and/or the accused. The judge's sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed, they cannot fetter the judge's performance of the judicial function by their plea bargaining: see Malvaso v The Queen ... [[1989] HCA 58; 168 CLR 227]"
The second "statement of general principle" was drawn from the decision of this Court in R v Palu [2002] NSWCCA 381; 134 A Crim R 174, and is in the following terms:
"21 It behoves the parties, especially after a 'plea bargain', to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court: Chow ... at 604-608 ..."
It is worth also noting a brief passage from the judgment of Johnson J in O'Neil-Shaw. His Honour said:
"50 Where affidavits are read without objection in civil proceedings, with deponents not being required for cross-examination, the rule is that such evidence should be accepted unless there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence ..." (citations omitted)
It may be that his Honour regarded that principle as also applicable in criminal proceedings. If that is so, I would venture to suggest that the principle is stated too broadly. Criminal proceedings, including (and possibly especially) sentencing proceedings, are more than interpartes litigation. A sentencing judge must have regard not only to the often competing positions of the Crown and the person the subject of the proceedings, but also to the public interest in criminal justice. That interest extends to the imposition of a sentence correctly within the appropriate range. That, in turn, extends to a proper and critical examination of all material put before the sentencing judge. A judge is not bound "passively and unquestioningly" to accept an account, apparently mitigatory, of an offender's motivation for becoming involved in an offence.
The various passages cited above expose two principles that are not necessarily easy to reconcile. On the one hand, as was noted in Chow, a sentencing judge is not obliged to accept "passively and unquestioningly" evidence presented by either party. On the other hand, as was pointed out by Basten JA and Johnson J in O'Neil-Shaw, the normal processes in the adversarial system require that the opposing party identify any challenge to factual material placed before the court. If no such challenge is identified, it is not unreasonable to assume that the evidence is not disputed. Where that is the case, it might also reasonably be expected that the sentencing judge would accept the evidence, at least in the absence of some signal that that might not be the case. Such a signal would give the party an opportunity to attempt to marshall additional evidence or argument. Basten JA explicitly recognised this in the last part of para [26] in O'Neil-Shaw.
However, that analysis omits one further consideration. Ethical constraints exist to preclude cross-examination on factual matters where the cross-examiner is not in possession of instructions on those factual matters that contradict the evidence given, or call it in question. That is a point of distinction between this case and O'Neil-Shaw. In O'Neil-Shaw, the subject matter of evidence said to have been unfairly not considered concerned a long history of asserted abusive conduct on the part of the victim of the offence. Given that the offence was one of extreme physical violence, which the offender claimed was mitigated by the victim's past conduct, the evidence was potentially of significance. Witnesses had committed their accounts of the victim's conduct to written form, many of them affidavits. Because of an approach taken by the parties with a view to shortening the proceedings, witnesses were not called for cross-examination. The competing accounts of the victim's conduct were not therefore, in the traditional or conventional way, explored. But they were capable of being explored, and the applicant (who claimed to have been disadvantaged by the rejection of the evidence) had ample notice of the nature of the evidence, and therefore ample opportunity to marshall his response. This Court nevertheless regarded the issue of sufficient importance to remit the matter to the District Court for rehearing.
In the present case, it is difficult to envisage what instructions Crown counsel might have had in order to challenge the applicant's account. There is no reason to think that the applicant had, in his (apparently brief) conversation with police in the hospital, mentioned the matters put forward as duress. Despite what appeared in paragraph 21 of the Crown's written submissions on sentence, the agreed fact was that the applicant did not (although willing to do so) participate in a recorded interview. There is no mention of those matters in the report of Mr Howard, the psychologist. (Equally, there is nothing in the report that indicates that the circumstances of the offending were discussed.) So far as is known, the first mention of those matters was when he gave his evidence in the sentence proceedings. In those circumstances, the Crown could hardly be expected to have been in a position to put any cross-examination based on asserted facts contrary to what the applicant had asserted.
In those circumstances "the absence of challenge by the Crown" is of limited consequence.
Of course, cross-examination is not limited to factual challenges. The Crown may have explored what the applicant said, by seeking to probe further, and, possibly, expose inconsistencies or elicit a further explanation that was "inherently implausible". That is a difficult path to tread in the absence of any notice that the evidence was to be given. It was open to the Crown, in cross-examination, to question the applicant about the absence of mention of the threats and violence in any of the documentation, including Mr Howard's report. What is not known is what responses such questioning may have elicited.
It was also open to the Crown in submissions to signify that it did not "passively and unquestioningly" accept the evidence, and did not accept that the judge should do so. The Crown may have drawn attention to the apparent absence of any mention by the applicant prior to his evidence of the events he then recounted. This is where it seems to me that the applicant is on stronger ground. The Crown not having taken that course, it was not unreasonable for the applicant's counsel to proceed on the basis that his evidence was accepted. I have mentioned above "the first part of the proposition put on behalf of the applicant". The second part is that, if he were contemplating rejecting the applicant's evidence, then, in the circumstances as they existed, fairness dictated that the judge himself give the applicant notice of that consideration. Such a course is expressly mentioned by Basten JA in the last sentence at [26] in the passage cited above from O'Neil-Shaw.
It being apparent that the applicant relied to a significant extent on that evidence, and there having been no opposition by the Crown, fairness dictated that the applicant's counsel be notified that the judge was sceptical about the account given by the applicant. It was not accurate to say, as his Honour did (in the first paragraph extracted above), that the Crown had submitted that little weight should be given to the applicant's evidence. No such submission was made, either in writing or orally. Alerting counsel to the possibility of rejection of the applicant's case on motivation would, at least, have enabled counsel to make further submissions with a view to urging his Honour to accept what the applicant had said. It may even have been possible to call additional evidence in support, for example, from the applicant's wife, or from Mr Howard. In this respect it is pertinent to note (although it is often overlooked) that the Evidence Act 1995 applies in sentencing proceedings only if a direction is given to that effect. There is a degree of flexibility in sentencing proceedings in the manner in which evidence may be given.
The applicant is correct in saying that the Crown did not challenge the evidence. And he is correct to base the grounds of appeal upon the implied rejection of the evidence. I am of the opinion that Ground 1 is made out.
The question then arises as to the consequence of upholding that complaint. It leaves open, without a valid finding of fact, an important issue in the applicant's case in his motivation in participating in the offence. If his account of motivation is accepted, that may significantly diminish his moral culpability. If the Crown contention - that he was motivated purely by financial reward - is accepted, there is an equal but opposite impact on the assessment of moral culpability. On behalf of the applicant, it was contended that since it was not open to the sentencing judge to reject the applicant's evidence this Court ought, in effect, substitute its own finding that the applicant was motivated by the threats. That, no doubt, is why the second ground of appeal was added.
Although it might be correct that the Crown did not expressly challenge the applicant's evidence of threat, that is explicable for the reasons I have outlined - the Crown had no inkling that the applicant would give evidence to that effect. And there were valid reasons for scepticism about the applicant's evidence - that is, that he had never (so far as is known) raised it before he gave instructions to his legal representatives in preparation for sentencing. It may well have been expected that he would, at least, have told the psychologist, but there is no indication in his report that the applicant did so.
In the appeal, the Crown maintained the argument that the applicant's account of the circumstances in which he came to commit the offence ought to be rejected, because of the absence of any evidence that he had mentioned those circumstances to anybody prior to his giving the evidence. Particular mention was made of the absence of any mention of those matters in Mr Howard's report. The psychologist's report was prepared following an interview, conducted through an interpreter, of more than one and a half hours. It covered a variety of topics, under the headings "Presentation", "Family Background", "Education and Employment", "Social Relationships", "Health" (physical, mental and substance abuse) and "Clinical Opinion and Recommendations". Notably absent was any section concerning the circumstances of the offence, or the circumstances in which the applicant came to be involved in the offence. It cannot, however, be safely inferred that the applicant made no mention of those matters.
In my opinion, this is an issue of considerable importance. The offence with which the applicant was charged is a very serious one, as is evident from the maximum penalty prescribed (imprisonment for 25 years), and the sentence actually imposed (imprisonment for 6 years). Should the applicant's account of events in Cambodia be accepted, that is capable of having a bearing upon the appropriate sentence. In my opinion, that account has not been the subject of adequate consideration.
Regrettable though it is, I have concluded that the matter ought to be remitted for further hearing in the District Court. I see no reason why it should not come before the same judge.
I propose the following orders:
(i) Leave to appeal granted;
(ii) Appeal allowed, sentence imposed in the District Court set aside;
(iii) Proceedings remitted to the District Court for further hearing and determination.
LATHAM J: I agree with Simpson J.
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Decision last updated: 20 May 2013
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