GLEESON CJ, GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
YING-LUN (GARY) CHEUNG APPELLANT
AND
THE QUEEN RESPONDENT
Cheung v The Queen [2001] HCA 67 22 November 2001 S200/2000
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation:
A Scrivener QC with J I Doris for the appellant (instructed by Stephen Hodges)
J V Agius SC with S M McNaughton for the respondent (instructed by Director of Public Prosecutions (Commonwealth))
Intervener:
D M J Bennett QC, Solicitor-General of the Commonwealth with C Traill, J S Stellios and S A Lovett intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor).
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Cheung v The Queen
Criminal law – Sentencing – Principles and practice – Division of functions between judge and jury – Suggested alternative factual bases for verdict and sentence – Appellant convicted of being knowingly concerned in the importation of a commercial quantity of heroin – Duty of sentencing judge to determine extent of appellant's culpability consistently with verdict of jury – Whether sentencing judge obliged to fix sentence on view of evidence most favourable to appellant – Relevance of manner in which charges framed in indictment – Relevance of right to trial by jury contained in s 80 of the Constitution.
Constitutional law (Cth) – Jury trial of indictable federal offence – Determination of factual basis for jury verdict of guilty – Whether s 80 of the Constitution relevant to the framing of charges in the indictment where alternative factual bases for the verdict exist – Whether right to trial by jury relevant to resolution of applicable basis of verdict for the purpose of sentencing the prisoner.
Constitution, s 80. Customs Act1901 (Cth), s 233B.
GLEESON CJ, GUMMOW AND HAYNE JJ. This appeal is said to raise a question of sentencing principle and practice, concerning the role and responsibilities of a sentencing judge following a conviction at a trial by jury.
The appellant was tried, in the Supreme Court of New South Wales, before Badgery-Parker J and a jury. The charge was that between 1 August 1988 and 12 May 1989 he was knowingly concerned in the importation into Australia of a quantity of heroin being not less than a commercial quantity contrary to s 233B of the Customs Act 1901 (Cth). He was found guilty by the jury on 19 May 1993. He came before Badgery-Parker J for sentence on 6 August 1993. The maximum penalty for the offence was imprisonment for life. The appellant was sentenced to imprisonment for life. A non-parole period of 21 years
[2]R v Cheung, unreported, Court of Criminal Appeal of New South Wales, 21 November 1997.
11 months was fixed. An appeal against sentence to the Court of Criminal Appeal of New South Wales was…
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.
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AGLC
Cheung v The Queen [2001] HCA 67
Case
[2001] HCA 67
Decision Date
CaseChat Overview and Summary
The appellant, Mr. Cheung, was convicted in the Supreme Court of New South Wales of being knowingly concerned in the importation of a commercial quantity of heroin into Australia. He was sentenced to life imprisonment with a non-parole period of 21 years and 11 months. Mr. Cheung appealed this conviction and sentence to the High Court of Australia, arguing that the sentencing judge erred in determining the factual basis for his culpability, particularly in light of potential alternative interpretations of the jury's verdict and the constitutional right to trial by jury.
The central legal issues before the High Court concerned the division of functions between a judge and jury in criminal sentencing, specifically when a jury's verdict of guilty might be based on different factual understandings of the extent of the appellant's involvement. The appeal also raised questions about the relevance of Section 80 of the Australian Constitution, which guarantees the right to trial by jury for indictable federal offences, to the framing of charges and the determination of the factual basis for sentencing when alternative factual scenarios could support a guilty verdict.
The High Court, in dismissing the appeal, affirmed that the sentencing judge's approach was proper and did not infringe upon the right to trial by jury. The Court reasoned that established principles dictate a division of functions where the jury determines guilt, and the sentencing judge, after a guilty verdict, resolves factual matters necessary for sentencing that were not determined by the jury. This process, which involved the sentencing judge reviewing the evidence to make findings on the extent of the appellant's culpability consistent with the verdict, was deemed orthodox and not unconstitutional. The Court noted that the constitutional argument regarding the framing of the indictment was not raised at trial and that the procedure followed was consistent with previous High Court decisions.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
In considering an appeal to the provisions of the Constitution, it is essential for the judicial decision-maker to shift mental gears. Not only is a different field of legal discourse entered, but, in giving meaning to a constitutional rule, the decision-maker must read a provision, such as s 80, as a constitutional provision, meant to be a fundamental guarantee[48], protective of the accused and of the community alike. [48]Cheatle v The Queen (1993) 177 CLR 541 at 562 cf R v Snow (1915) 20 CLR 315 at 323; Brownv The Queen (1986) 160 CLR 171 at 215.The facts and course of the proceedings The facts and the course of proceedings in this matter are described in the reasons of Gleeson CJ, Gummow and Hayne JJ ("the joint reasons")[49] and in the reasons of Callinan J[50]. I will not repeat what is there set out.[49]The joint reasons at [2]-[3].[50]Reasons of Callinan J at [138]‑[151]. Save for the possible application of the Constitution, there is no merit in any of the points argued in this appeal. There was no challenge at trial to the indictment presented against the appellant containing, as it did, a single count alleging an offence against the Customs Act 1901 (Cth)[51]. As Callinan J has explained, with telling force, there were strong forensic reasons that would have explained a decision on the part of the appellant not to object to the single count of the indictment and not to propound the proposition that the offence should be split into two counts, as now urged before this Court[52]. The course adopted left it open to the appellant to mount a frontal attack on the prosecution evidence and in particular that of the self-confessed accomplice and co-conspirator, Cheung Siu Wah, who gave evidence against the appellant under immunities granted to him by prosecution authorities in Australia and Hong Kong. He was, by any account, a rather disreputable person. By his own story, he was in the thick of the conduct leading to the relevant importation. He recanted at a very late stage, implicated the appellant, a person of previous good character, and secured a relatively light sentence whilst offering the appellant up to detection, arrest, conviction and condign punishment. The possibility of separate counts in the indictment (even if it would have been helpful to the appellant's present purposes) could have deprived the appellant of the chance of having his exculpatory version of events wholly accepted by the jury, with the consequence that a verdict of not guilty would be entered. [51]s 233B(1), of being knowingly concerned in the importation of a prohibited import.[52]Reasons of Callinan J at [152]‑[171]. Whether the constitutional point belatedly urged in this Court was consciously saved up for later or judged unlikely to succeed or simply overlooked, the fact remains that it was not raised at any time during the trial. Nor was it raised during the sentencing phase of the proceedings before the primary judge (Badgery-Parker J). On the contrary, it was agreed that his Honour should approach the task of sentencing in the way that has hitherto been regarded as orthodox in Australia and applicable to sentencing of prisoners convicted of federal and non-federal offences alike.
Reference has already been made to the decision of this Court in Savvas. One of the offences involved in that case was an offence against a law of the Commonwealth. It involved the same legislation as covers the present case. There was no suggestion that the procedure adopted by the sentencing judge, which was approved by this Court, was unconstitutional. As in the present case, that procedure involved the trial judge, following a jury verdict of guilty, reviewing the evidence for himself for the purpose of making findings on matters of fact which were necessary for sentencing, and which were not resolved by the jury's verdict. Such a procedure does not involve any infringement of a right to trial by jury. It involves the application of well-established principles as to the division of functions which are, and were in 1900, an aspect of trial by jury.Conclusion The course taken by Badgery-Parker J in relation to the sentences of the appellant was proper. The appeal should be dismissed. Following his conviction in the Supreme Court of New South Wales on a charge that, between 1 August 1988 and 12 May 1989, he was knowingly concerned in the importation of a commercial quantity of heroin into Australia, the appellant was sentenced to life imprisonment with a non-parole period of 21 years 11 months. The sentence of life imprisonment was imposed by Badgery-Parker J on the basis that his Honour was satisfied beyond reasonable doubt that the appellant, a senior customs officer in Hong Kong, became aware of the availability of a large quantity of heroin and "became involved in the organization of the transportation of that heroin from Hong Kong via Vanuatu to Australia and its importation into Australia". As will later appear, the appellant's conviction did not necessarily depend on the jury being satisfied that he was as deeply involved in the plan to import heroin into Australia as the sentencing judge found. A sentence appeal to the Court of Criminal Appeal, which, in essence, was based on the possibility that the jury may have found the appellant guilty on a basis involving significantly less criminality, was unsuccessful[30]. The appellant now appeals to this Court by reference to the same possibility, but calls in aid somewhat different legal arguments.[30]R v Cheung (1999) 154 FLR 259.The trial and verdict The main thrust of the prosecution case against the appellant was that he was involved in the planning of the importation from August 1988, when he became aware of the availability of heroin in Hong Kong, until 12 May 1989, three days after its arrival in Australia, and that, during that time, he "busied himself in the instigation, planning, co-ordination, financing and supervision of [the] scheme" for the transfer of the heroin from Hong Kong to Australia via Vanuatu. The prosecution case that the appellant was engaged in the planning of the importation from the time he became aware of the heroin's availability in Hong Kong depended on the jury's acceptance of the evidence of an accomplice ("the accomplice"). The accomplice was involved in activities in Hong Kong, "travelled from Hong Kong to Vanuatu to oversee the unloading of the [heroin] and its repackaging" and, in April 1989, travelled to Australia and later contacted those to whom it was to be delivered.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GUMMOW AND HAYNE JJ,
GAUDRON J,
CALLINAN J