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
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
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
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
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.