DPP (Cth) v Kiam-Fah Teng
[2004] VSC 340
•1 September 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
IN THE MATTER of an Application for Legal Aid: s.360A(2) Crimes Act 1958
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIAM-FAH TENG |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2004 | |
DATE OF RULING: | 1 September 2004 | |
CASE MAY BE CITED AS: | DPP v Kiam-Fah Teng | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 340 | |
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Criminal law and procedure – Application by accused for assistance for trial pursuant to s.360A(2) Crimes Act 1958 – Whether applicant has established pursuant to s.360A(2)(b) that he is unable to afford the full cost of obtaining from a private practitioner legal representation in the trial – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| On Behalf of the Director | Ms M. Hodgson | Commonwealth Director of Public Prosecutions |
On behalf of the Applicant | Dr G.J. Lyon | Victoria Legal Aid (Criminal Law Division) |
| On behalf of Victoria Legal Aid | Ms R. Ellyard | Victoria Legal Aid (Grants Division) |
HIS HONOUR:
This is an application pursuant to s.360A(2) Crimes Act1958 by the accused, Mr Kiam-Fah Teng for an Order that Victoria Legal Aid provide assistance to him for his forthcoming trial in this Court on a count of aiding and abetting the importation into Australia of a commercial quantity of the narcotic substance, heroin, contrary to s.233B(1)(b) Customs Act 1901 and a count of the possession in Australia of a commercial quantity of the narcotic substance, heroin, contrary to s.233B(1)(c) of that Act. Mr Teng and others are charged with those offences arising from the alleged importation into Australia of a large quantity of heroin in April 2003 on board the Korean vessel Pong Su.
Mr Teng was arrested and charged with those offences in May 2003. With other accused he was committed for trial on 5 March 2004. He and seven co-accused are now on trial before this Court, having been arraigned on 15 July 2004. Pre-arraignment proceedings have commenced before Kellam J, who is the trial judge, and are to continue in 2004 from 25 October. The learned trial judge has laid down a schedule of steps for the timely and efficient progress of the trial. Jury empanelment is scheduled for late January 2005.
The trial will be a substantial trial, anticipated to be with pre-empanelment proceedings of the order of four months in duration. The two counts of course are particularly serious, normally involving upon conviction the imposition of lengthy terms of imprisonment.
On 5 April 2004, Mr Teng through his solicitors applied to Victoria Legal Aid for assistance for his trial. On 21 April 2004, Victoria Legal Aid refused Mr Teng's application. On 24 June 2004, Victoria Legal Aid granted Mr Teng assistance in respect of his arraignment before this Court which, as I have said, occurred on 15 July 2004. It is from the decision of Victoria Legal Aid to refuse to provide assistance to Mr Teng for his trial, other than for the arraignment, that this application to the Court derives.
There is no doubt that the seriousness, length and complexity of the forthcoming trial, not to mention Mr Teng's foreign nationality, lack of substantial English and involvement in a legal system unfamiliar to him, warrant the provision to him of legal representation in the trial as contemplated by s.360A(2)(a) Crimes Act 1958, if the criterion in sub-s.(2)(b) is satisfied, namely that he is in need of legal assistance because he is unable to afford the full cost of obtaining from a private practitioner legal representation in the trial - see R v. Phung[1]. The respondent, Victoria Legal Aid, responsibly does not contend otherwise.
[1](1999) 3 V.R. 313 at 317 per Brooking JA
The epicentre of this application is sub-s.(2)(b). The burden of proof for the purposes of sub-s.(2)(b), that the accused is unable to afford the full cost of obtaining legal representation in the trial, rests upon the accused - sub-s.(4)(b).
In a nutshell, Victoria Legal Aid contents that the applicant, Mr Teng, has not revealed his true financial situation and has not demonstrated that he is in truth unable to afford the costs of legal representation at trial. Mr Teng says that he has revealed his true financial situation, has no assets and has demonstrated his inability to afford the full cost of legal representation in the trial.
I entirely agree with Dr Lyon, in his most helpful submissions on behalf of the applicant, that the judgment I here exercise is in no character punitive. If I found that Mr Teng has been less than truthful with Victoria Legal Aid or with the Court, that of itself does not found refusal of legal assistance. It may, however, bear upon the question whether Mr Teng has discharged the onus of proof upon him as enshrined in sub-s.(4)(b).
The question before me is whether Mr Teng has discharged that legal burden of proof, that he is unable to afford the full costs of obtaining legal representation for his trial.
To directly address that question, it is necessary to rehearse some of the history of Mr Teng's revelations to Victoria Legal Aid. I shall hereafter refer where appropriate to Mr Teng as the applicant.
In the affidavit of Ms Crundall, Manager Grants Division, sworn 6 August 2004, it is deposed as follows. In relation to the committal hearing on 3 June 2003, the applicant signed an application for legal assistance for his committal. In that application he stated that he needed either a Cantonese or Mandarin interpreter. He did not complete most of the questions in the application which related to his financial position. Victoria Legal Aid accordingly was at that point was unable to assess the application.
By letter dated 22 July 2003, Victoria Legal Aid advised the applicant's solicitor that his financial position needed to be investigated before Legal Aid could consider any grant of assistance. That letter, Exhibit JC3 to Ms Crundall's affidavit, further stated that the applicant was required to provide full details of his financial circumstances by 25 July 2003. In the absence of a response, on 4 August 2003, Victoria Legal Aid repeated the request. By memorandum dated 27 August 2003, the applicant's solicitor provided Victoria Legal Aid with a completed Victoria Legal Aid application form dated 26 August 2003 and a statutory declaration of his of that date which was exhibited as JC5. In it the applicant stated that he needed either a Cantonese or Mandarin interpreter; that he or a person financially associated with him owned a property at 6-6-15 Greenview Apartments, Kepong, Kuala Lumpur, Malaysia, which is referred to as the first property in the affidavit of Ms Crundall; and that the estimated market value of that property to be $US25,000 and stated that he paid a mortgage of $US160 per month on the property, with an estimated 15 years of the mortgage left to pay. The applicant further stated that he or a person financially associated with him, owned a second property at 15-6 Prima Saujana, Kuala Lumpur, Malaysia; that the estimated market value of that property was $US25,000; and that he paid a mortgage of $US160 per month on it with an estimated 15 to 20 years of the mortgage left to pay. In the statutory declaration, the applicant stated:
"My relatives live in the second property. I own this with my sister. I get no income from this property."
That statutory declaration was translated from English into Cantonese by Yung Chun Song, an accredited interpreter.
By e-mail dated 29 August 2003, Victoria Legal Aid sought information from the applicant's solicitor regarding the precise amount owing on the applicant's mortgages and whether he received rental income from either property. By return e-mail of the same date, the applicant's solicitor advised Victoria Legal Aid that the applicant was unable to give a precise indication of the equity available in either property. The solicitor further stated that the applicant was able to confirm that there was still a significant period of time to make repayments on the mortgages over the properties and that the applicant was not able to sell the properties or instruct others in Malaysia to sell the properties and that the applicant did not receive rental income from either property.
By memorandum dated 11 September 2003, the applicant's solicitor advised Victoria Legal Aid that the applicant was unable to obtain statements of the state of equity in the properties and had instructed that if the properties were to be sold, there would be no equity available.
By e-mail dated 17 September 2003, Victoria Legal Aid advised the applicant's solicitor that it did not accept the applicant's assertions in relation to the properties, that Victoria Legal Aid rejected the assertions that there was no equity in the properties and that the applicant could not obtain bank statements for the properties. That is Exhibit JC8 to Ms Crundall's affidavit.
Under cover of the memorandum of 2 October 2003, Victoria Legal Aid received a further statutory declaration of the applicant of that date. This memorandum stated that the applicant had misunderstood questions in relation to the properties and his responsibility to them. The memorandum stated in part:
"... the difficulty was in his comprehension due to the use of the Cantonese interpreters rather than Mandarin."
It went on:
"Clearly his Cantonese is far superior to his English but he states that he was educated in Mandarin and spoke Mandarin with his family.... in respect of the first property he says he lived there and paid rent but that is all. In respect of the other second property he says it is owned by his sister and her alone."
The memorandum identifies that the applicant's solicitor had used both Cantonese and Mandarin interpreters on eight occasions in conference with the applicant.
In his statutory declaration of 2 October 2003, the applicant stated that he did not have an interest in the first property and that he merely used to rent it. As to the second property the applicant stated that it was owned by his sister and he did not have any interest in it. The applicant stated:
"I had difficulty understanding the Cantonese interpreter on 26 August 2003. I thought he was asking where I had lived. My Cantonese is not very good. I paid rent at (the first property) of about $US160 per month. I paid no money at (the second property). I misunderstood the interpreter, I own no property anywhere."
That declaration is JC9 to Ms Crundall's affidavit.
By e-mail of 6 October 2003 Victoria Legal Aid informed the applicant's solicitors that legal aid for the committal had been refused on the basis of the applicant's means.
On 6 October 2003 the applicant's solicitor sought reconsideration of Victoria Legal Aid's decision. Reconsideration was given and the decision to refuse assistance was confirmed.
On 9 October 2003 the applicant's solicitor sought independent review of the decision to refuse legal aid to the applicant for his committal.
On 9 October 2003, the same day, the Managing Director of Victoria Legal Aid instructed Ms Crundall to contact Victoria Legal Aid's agents in Kuala Lumpur and instruct them to undertake property title searches in respect of the two properties. This was done but the agents in Kuala Lumpur informed Victoria Legal Aid that it was impossible to undertake property search without full details of the addresses of the properties. These details were sought on 14 October 2003 from the applicant's solicitor and on 15 October Victoria Legal Aid was advised that the applicant could not provide further details of the addresses of the properties. That information is contained in an e-mail, Exhibit JC13 to Ms Crundall's affidavit.
In the event of that lack of detail Victoria Legal Aid decided not to incur any further expense in pursuing title searches but rather to make a further assessment of the eligibility of the applicant for legal assistance on the basis of the information he had provided and the circumstances of his case.
Given the movement of time and as the committal was listed for 1 November 2003, rather than going through a review Victoria Legal Aid made a provisional decision to provide the applicant assistance for his committal. That had the beneficent result of the committal not being interfered with or adjourned. The cost is anticipated to be some $2700 but is not finally determined and Victoria Legal Aid proposes to seek recompense of that or a like amount from the applicant.
On 5 March 2004 the applicant was committed to stand trial.
One thus comes to the trial which is the occasion for the present application.
By e-mail dated 1 March 2004, Victoria Legal Aid advised the applicant's solicitor that Victoria Legal Aid could not fund the applicant for a plea or trial; that Victoria Legal Aid required repayment for the committal within a reasonable period and required some security to ensure that repayment; and that Victoria Legal Aid could not vary those requirements unless and until Victoria Legal Aid received full address details of the two properties and was able to verify the applicant's assertion that he did not own them. That e-mail is Exhibit JC15 to Ms Crundall's affidavit.
On 9 March 2004 by e-mail Victoria Legal Aid again sought details of the financial circumstances of the applicant as is shown by Exhibit JC16.
By memorandum of 16 March 2004 Victoria Legal Aid was advised by the applicant's solicitor that the applicant had again instructed that he did not
"own any properties either in Australia or Malaysia. The properties he has mentioned is where he lived. One was a rented place and one was his sister's place."
That is JC17 to Ms Crundall's affidavit.
Under cover of a memorandum of 5 April 2004 the applicant's solicitor applied for an extension of aid for the applicant's trial and provided to Victoria Legal Aid a further statutory declaration of the applicant dated 5 April 2004. In that statutory declaration the applicant stated that he did not own any real estate and that the addresses listed in his application for aid made on 26 August 2003 were rented by his family and his wife's family. On 19 April 2004 the application for extension for assistance for the trial was refused. That refusal was advised to the applicant's solicitor on 21 April 2004 and is Exhibit JC19. The applicant's solicitor by memorandum of 26 April 2004 sought reconsideration of that decision but the decision stands.
As to ownership of the properties, by e-mail dated 7 June 2004 Victoria Legal Aid was informed by its agents in Kuala Lumpur that the applicant and Meng Lan Teng, who appears to be the applicant's sister, are registered as joint owners of the first property and the applicant and Swee Shall Low, who appears to be the applicant's wife, are registered as joint owners of the second property. On the basis of the information Victoria Legal Aid have been able to obtain from Kuala Lumpur, Victoria Legal Aid considers that the applicant does have a proprietary interest in both the first and the second properties.
As I have previously stated, Victoria Legal Aid provided conditional aid to the applicant before this Court for purposes of his arraignment. The grant of aid was offered on the condition that the applicant provide his financial institutions in Malaysia with consent to disclose his financial information to Victoria Legal Aid. That condition was imposed to enable Victoria Legal Aid to confirm the value of the properties and the equity available in the properties and to consider whether, if the properties could not be sold to enable the applicant to be privately represented, Victoria Legal Aid should seek to register a charge over the properties. On 12 July 2004, Ms Crundall was informed by the applicant's solicitor that the applicant continued to deny that he owned the properties and would not agree to the condition. By a memorandum dated 13 July 2004, the applicant's solicitor requested a reconsideration of the condition. The condition, however, was confirmed on 13 July. On 19 July, the applicant's solicitors sought review of the condition. That memorandum of 19 July, which is Exhibit JC26 to Ms Crundall's affidavit, stated that the applicant denied owning any property and could not explain how his name appeared on the relevant title searches.
As to review, on 21 July 2004 Victoria Legal Aid submitted the matter to its independent reviewer, who on 23 July confirmed Victoria Legal Aid's decision. That confirmation was advised to the applicant's solicitors by e-mail on 23 July 2004.
As a result of the applicant's refusal to accept a grant of legal assistance on the condition on which it was offered, Ms Crundall has deposed that the applicant is not in receipt of legal assistance for the purposes of the trial.
Ms Crundall has further deposed that the condition merely requires the applicant to make contact with his financial institutions to obtain information on his financial position and that the condition does not involve the applicant informing his parents or the Malaysian community of his present situation in Australia. Finally, Ms Crundall has deposed that the condition is similar to the condition placed upon all applicants for legal assistance to provide Victoria Legal Aid with details and documentation about their financial position. Ms Crundall noted early in the affidavit that Victoria Legal Aid currently funds three of the applicant's co-accused in this matter.
The matter first came on before me on 24 August 2004.
On that day Mr Teng was represented by counsel but unfortunately no interpreter had been arranged and so the proceedings were adjourned over to today. At that brief hearing I directed that any affidavit material to be filed on behalf of the applicant (none had yet been filed) was to be filed by 31 August 2004, the day before the date of resumption of the application. I also directed that the transcript of the day's hearing be translated for the applicant.
The matter has come before me late this afternoon. Counsel for the Commonwealth Director of Public Prosecutions appeared, informed me that the only interest the Director had in the application was to seek to ensure delays in the fixed trial dates did not occur, and then properly sought to be excused, which leave I granted.
Before me, originally sworn yesterday but re-sworn today to ensure its technical fulfilment, the applicant has sworn an affidavit in support of his application. In it, in substance, Mr Teng has deposed that he has no means to pay a lawyer, he has no access to any money in Australia and he has no property at all. Mr Teng give evidence before me and was cross-examined, with the benefit of the interpreter Mr Ai, to whom I express my appreciation.
In assessing Mr Teng’s evidence before me, I should and do make full allowance for the circumstances that the applicant is a foreign national, ordinarily domiciled overseas, does not speak substantial English and requires the services of an interpreter, and has no legal training or familiarity with the law. It appeared to me in his giving evidence including being cross-examined Mr Teng suffered no cognitive deficit. He was quick and relevant in his answers to questions. He showed a clear capacity to remember detail and to remember historical matter. He had a good understanding of the nature of questions and of inquiry.
Despite the applicant's apparent lack of any cognitive deficit and his capacity in the witness box as I have stated, not only has there been a progressive shift in the applicant's factual statements as to his means through the numerous memoranda of his solicitor as reviewed by me in Ms Crundall's affidavit of 6 August 2004, but his own affidavit, last sworn today, is riddled with vagueness.
Throughout his affidavit are terms of qualification and imprecision: "I understand", paragraph 3 and paragraph 4; paragraph 6, "to the best of my knowledge"; paragraph 7, "it is my understanding; paragraph 8, "I believe"; paragraph 9, "I do not have much information or knowledge"; paragraph 10, "I do not know how much"; paragraph 11, "I do not know the status"; paragraph 16, "I cannot remember"; paragraph 17, "I have never inquired"; paragraph 18, "I have never made this inquiry"; paragraph 20, "I think" and "I do not think"; paragraph 33, "To the best of my recollection", and "I cannot recall"; and paragraph 34, "I cannot remember", "I assume", and "I believe". In paragraph 31, referring to a period five to eight years ago when the first apartment was purchased, the applicant deposed:
"I cannot remember exactly when or even if my son was born at the time. There are lots of things that I cannot remember very well from the time, probably because of the way of my business failure, my worries due to my wife needing to go overseas to work, and my concerns for my son and parents' welfare."
In paragraph 36, the applicant deposed:
"In relation to Victoria Legal Aid's inquiries about my means, I advise that in the beginning of my relationship with Victoria Legal Aid, I heard or understood that it was going to sell my properties, even though I explained I did not own the properties. By 'own', I mean despite my name being on the properties, I do not have any right to claim or sell or deal with them. The reason I do not have any right, or consider myself an owner, is because the truly entitled owners are my sister in relation to my sister's apartment, and my wife in relation to my residence. I do not believe I am a truly entitled owner, as I have not assisted in purchasing either my residence or my sister's apartment."
In paragraph 37, the applicant deposed:
"Further, in the early days of my relationship with the Victoria Legal Aid I was concerned that if the apartments were sold there would be nowhere for my sister, her five children, my parents and my son to live."
In paragraph 38, he deposed:
"I have had, and continue to hold, concerns that Victoria Legal Aid in making inquiries about my residence or my sister's apartment would lead to my parents finding out about my current circumstances."
In paragraph 46, he deposed:
"Despite my worries about Victoria legal Aid taking my properties, and that somehow Victoria Legal Aid's inquiries would lead to a revelation of my whereabouts to my parents and son, I have nevertheless tried to be honest. I am aware that I have made mistakes about which family members live where, such as saying my sister bought the apartment known as Sayjana instead of my wife. However, these mistakes were due to my confusion between the two apartments, and in particular confusion about which apartment was being referred to and which period of time was being considered when I have answered questions and signed statements."
The applicant deposed (paragraph 38) that he has had, and continues to have, concerns that enquiries by Victoria Legal Aid in Malaysia as to his assets "would lead" to his elderly and unwell parents being informed of his current circumstances, which presently they are not. Understandable as is the applicant's concern about, and commendable his solicitude for, his parents, that is not a ground for non-provision of necessary financial information to Victoria Legal Aid.
Ultimately the applicant deposed in that affidavit and swore before me that he does not have any assets, and does not have access to any money in Australia.
Having made every allowance - which I consider one certainly should in the situation of Mr Teng being far from home, having limited English, being in custody and not having normal access to information - I am entirely unsatisfied on the material before me and which I have reviewed that Mr Teng is unable to afford the full cost of obtaining from a private practitioner legal representation in his trial. I have taken into account the matters most helpfully presented by Dr Lyon. However, given the history of prevarication of the applicant and given his continuous vagueness in his affidavit sworn today compared with his clarity of mind as demonstrated in the witness-box, I am unpersuaded that he has discharged the onus of proof upon him as contemplated by s.360A(4)(b) Crimes Act 1958.
Accordingly I refuse the application.
I also consider that Victoria Legal Aid has acted correctly throughout its handling of this matter.
I do hope that the applicant does have legal representation for his trial because that legal representation would assist him and it would also assist the Court. But the only way the applicant will obtain assistance from Victoria Legal Aid is if he fulfils the requirements laid down under the Act for the allocation for his benefit of scarce public funds.
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