Chong v The Queen

Case [2020] WASCA 143

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   CHONG -v- THE QUEEN [2020] WASCA 143

CORAM:   BUSS P

MAZZA JA

MITCHELL JA

HEARD:   21 JULY 2020

DELIVERED          :   4 SEPTEMBER 2020

FILE NO/S:   CACR 144 of 2018

BETWEEN:   YUEN KUAN CHONG

Appellant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   FIANNACA J

File Number            :   INS 62 of 2017


Catchwords:

Criminal law - Drug offences - Appeal against conviction - Whether miscarriage of justice arose from a wrong direction that evidence relied on by the accused was not relevant to the issues the jury were required to consider - Whether comments on the evidence made by the trial judge in his charge to the jury gave rise to a miscarriage of justice - Whether comments undermining counsel of the accused's submissions constituted a failure by the trial judge to fairly put the defence case to the jury

Legislation:

Criminal Procedure Act 2004 (WA), s 112

Result:

Leave to appeal granted
Appeal allowed
Conviction set aside and retrial ordered

Category:    A

Representation:

Counsel:

Appellant : S J Oliver
Respondent : D L Renton & J A Johnston

Solicitors:

Appellant : Sarah Oliver
Respondent : Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50

Domican v The Queen (1992) 173 CLR 555

Galipo v The State of Western Australia [2019] WASCA 188

Green v The Queen (1971) 126 CLR 28

Maher v The State of Western Australia [2010] WASCA 156

Mamood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397

Mareangareu v The Queen [2019] VSCA 101

McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307

Phan v The State of Western Australia [2019] WASCA 131

Pyliotis v The Queen [2020] VSCA 134

R v Emes [2019] SASCFC 75

R v Meher [2004] NSWCCA 355

Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319

TABLE OF CONTENTS

Summary

The prosecution case generally

The prosecution case against the appellant

Appellant's case at trial

Evidence at trial

Defence counsel's submissions

The trial judge's directions

Role of judge and jury

Detective Sergeant Fogell's evidence

Elements of the offences

Summary of evidence on which the Crown relied

Summary of appellant's counsel's submissions

Directions about Ms Ward's evidence

Counsel's submissions about the direction as to Ms Ward's evidence

Ground of appeal to this court

Issues for determination

Misstatement of fact as to 'large containers'

Appellant's submissions

Respondent's submissions

Disposition

Direction as to relevance of Ms Ward's evidence

Appellant's submissions

Respondent's submissions

Disposition

Effect of the direction

Relevance of Ms Ward's evidence

The later direction did not correct the error

Conclusion

Alleged failure to fairly put the defence case to the jury

Appellant's submissions

Respondent's submissions

Directions to juries - general principles

The approach required by McKell

Disposition

Orders

JUDGMENT OF THE COURT:

Summary

  1. In McKell v…

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AGLC
Chong v The Queen [2020] WASCA 143
Case
[2020] WASCA 143
Decision Date

CaseChat Overview and Summary

In the case of Chong v The Queen, the appellant contested the conviction handed down by the trial judge, arguing that there was a miscarriage of justice due to incorrect directions given to the jury regarding the relevance of certain evidence. The appellant's defence was that he believed the bags he assisted in importing contained illicit tobacco and was unaware that they contained methamphetamine. The trial judge's comments and directions to the jury on the relevance of specific evidence were central to the appeal. The primary issue before the court was whether the trial judge's comments on the evidence, particularly regarding the relevance of Michelle Ward's testimony on the importation of illicit tobacco and Michael Fogell's evidence on drug syndicate operations, constituted a miscarriage of justice by unfairly affecting the jury's assessment of the appellant's defence.

The court examined whether the trial judge's remarks on the evidence were binding directions or merely summaries. It was determined that while the judge's comments on the evidence were not binding, they could still influence the jury's perception of the evidence's relevance. The court further assessed whether the judge's comments, which appeared to undermine the appellant's counsel's submissions, amounted to a failure to fairly present the defence case to the jury. The appellant argued that specific comments made by the trial judge misstated the evidence and directed the jury that certain evidence was irrelevant, both of which were legally incorrect and prejudicial. The court needed to determine if these errors cumulatively impacted the fairness of the trial.

The court found that although the trial judge's comments might have been prejudicial, they did not rise to the level of a miscarriage of justice. The judge's remarks, while potentially influencing the jury, did not constitute a legal misdirection that would undermine the integrity of the trial process. The court concluded that the appellant's defence was adequately presented to the jury, and any prejudicial effect of the judge's comments was not sufficient to warrant a new trial. The appeal was dismissed as the court found no miscarriage of justice in the trial proceedings.

Orders

Orders of the court

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Background

Background to the litigation

After directing the jury about the elements of the offence relating to all of the accused, the trial judge proceeded to summarise the evidence on which the prosecution relied. In his remarks introducing that topic, the trial judge said:[49]What I will say about the evidence in some respects will involve further directions on the law, as I've already said to you. To the extent that what I say about the evidence is really simply reminding you of the evidence or making comment about the evidence, then those things that I say are not binding upon you. It is only the directions of law that are binding upon you.Obviously I would hope that what I say to you will assist you to some extent as counsel have hopefully assisted you with their addresses to you. But always remember that anything that I say will only be a summary. You are the judges of the facts and it is for you to decide the facts on the evidence you saw and heard which includes all of the exhibits which you will take into the jury room. (emphasis added)[49] Trial ts 3326. The summary of the evidence was detailed and will not be recounted here. At one point, the trial judge corrected some factual errors which counsel had pointed out to him in the absence of the jury. In doing so, his Honour said:[50]Now, you need to bear in mind at all times, as I've said to you, that what I say about the facts is not binding upon you. You're the sole judges of the facts. And it is what you recall of the facts and what you make of the facts having regard to what witnesses have said and what is contained in the exhibits that matters in the end.Having said that, I will endeavour not to make any errors in stating the facts to you but there were some I think that I need to correct.[50] Trial ts 3377 - 3378. In summarising the evidence relied on by the Crown, the trial judge made the following further observations about Detective Sergeant Fogell's evidence:[51]Now, in that context, because this is the proposition that was put to you by a number of the counsel for the accused, you've been asked to consider the evidence of Detective Sergeant Fogell - I already dealt with that on - well, early on - and indicated that you need to make your own judgment about whether there were any limitations to what Detective Sergeant Fogell has said.Ultimately he acknowledged that secrecy is part of the way in which organised crime and those who might be involved in smuggling drugs to Australia would operate. But that doesn't necessarily tell you in relation to what information, what would they keep secret from those who are involved?It's a matter for you, ladies and gentlemen, but counsel for the accused have made their arguments as to why they - some of the accused at least may be kept on the dark, why someone who is working on the engine would not need to know what the whole trip was for, why someone who might have been hired as a cook would not need to know what the whole - or what the trip was for, what the purpose was for.Maybe some analogies are not particularly helpful. The use of the term 'foot soldiers', the examples that were given about soldiers being sent in as cannon fodder and so on, not being told by the generals or their commanders what they were going into. It seems to me that the difficulty with that sort of example is that soldiers at least would know what they're involved in. They know that they are going in to fight the enemy. They know who the enemy is, and they know who they are fighting for.So I'm not sure that that example is particularly helpful as far as trying to make a judgment about whether the accused in a case such as this would be kept in the dark, would be deprived of information about what the purpose of the trip was and what it was that - or where it was that they were going, because they are both essential facts that you need to be satisfied about.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The trial judge indicated that he still needed to deal with the issue in the context of another counsel's address, and if his Honour thought he needed to say anything about the issue he would relate it back to what the appellant's counsel had said as well.[66] When he dealt with the submissions of counsel for Ching (who also said he believed he was importing tobacco), the trial judge said:[67]But in any event, ladies and gentlemen, the point that I made earlier does apply in my view in this instance as well. It's a matter entirely for you as to the significance that you place on that evidence. But what you're concerned with in the end is not what objectively might be established.It might go to the question of whether it's inherently implausible that an operation of this kind would involve cigarette importation or tobacco importation, which counsel reminded you was the proposition that was being put by the Crown, but you are in the end concerned with what was in the mind of the accused that you are dealing with in dealing with each one separately, and in this case with Mr Ching and what evidence there is that he had any knowledge about what money might be made, or what savings might be made as far as duty is concerned.[66] Trial ts 3479.[67] Trial ts 3482. The appellant appeals on the sole ground that there was a miscarriage of justice occasioned by the trial judge's direction. The ground is particularised in the following manner:In addressing the jury in relation to the following evidence, the trial judge made comments in relation to the relevance of the evidence and such comments materially prejudiced the appellant as they unfairly affected the jury's assessment of the appellant's defence to the charge (that defence being that he believed that the bags he assisted to import contained illicit tobacco, and that he did not know that the bags contained methamphetamine):(a) the evidence of Michelle Ward as to the fact that the importation of illicit tobacco is a real and significant problems for the Australian authorities; and(b) the evidence of Michael Fogell as to the way in which drug syndicates operate. There were three strands to the appellant's submissions before this court, as developed during the course of oral argument:(1)In the passage quoted at [71] above, the trial judge misstated the effect of Ms Ward's evidence, when he told the jury that the effect of her evidence was that 'when [tobacco] comes in by sea … it's in large containers'.(2)The passage quoted at [72] above could be taken as a direction that Ms Ward's evidence was irrelevant, which was an incorrect direction as a matter of law.(3)The passages quoted at [71] and [72] above, and the comments about Detective Sergeant Fogell's evidence, had a cumulative and significant effect on the jury's assessment of the appellant's defence at the trial that this resulted in him not receiving a fair trial. The parties' submission as to those matters, and the disposition of the arguments, are dealt with below.