Kho v The Queen - [2012] NSWCCA 71

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kho v R [2012] NSWCCA 71
Hearing dates: 8 March 2012
Decision date: 26 April 2012
Before: McClellan CJ at CL at [1]
Johnson J at [57]
Grove AJ at [58]
Decision:
1. Appeal upheld.
2. The conviction in the District Court is quashed.
3.Order a new trial.

Catchwords: CRIMINAL LAW - appeal - conviction - incompetence of counsel - failure of counsel to enquire about evidence of a co-accused - admission of irrelevant evidence - whether evidence that appellant was under surveillance prior to the commission of the offence was admissible - fresh evidence - whether interruption of cross-examination by the trial judge resulted in a mistrial
Legislation Cited: Drug Misuse and Trafficking Act 1985
Criminal Procedure Amendment (Case Management) Act 2009
Cases Cited: MRW v The Queen [2011] NSWCCA 260
Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
R v Boag (1994) 73 A Crim R 35
R v Saleam (1989) 16 NSWLR 14
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR124
Category: Principal judgment
Parties: Chuan Tat Kho (Appellant)
Crown
Representation: Counsel:
W Dawe QC (Appellant)
J Dwyer (Crown)
Solicitors:
McKenzie Leamey Solicitors (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/139048
Decision under appeal

Date of Decision:

2010-10-28 00:00:00

Before:

Bennett DCJ

File Number(s):

2009/139048

Judgment

The appellant, Chuan Tat Kho was convicted following a trial by jury of an offence which was pleaded in the following terms that:

"He on 16 January 2009 at Sydney in the State of New South Wales did supply a prohibited drug, namely heroin in an amount of 13.999 kilograms which was not less than a large commercial quantity applicable to that prohibited drug."

The offence which is contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 carries a maximum penalty of imprisonment for life and a standard non-parole period of 15 years.

The appellant was sentenced to a period of 18 years imprisonment with a non-parole period of 12 years. The case against the appellant was one of deemed supply: s 29 of the Drug Misuse and Trafficking Act.

Evidence at the trial

The appellant stood trial jointly with a co-offender Tan, who was alleged to have supplied the heroin to the appellant and another co-offender Loh. Loh pleaded guilty. The appellant and Loh were staying at the Mantra hotel at Chatswood. On the day of the offence they were observed by the police from when they left the Hotel and travelled by train to the city where they met another offender Tan. The heroin was transported by Tan in a trolley-case and was delivered to the appellant and Loh at a Starbucks Cafe near Chinatown, at Haymarket. There were images from CCTV cameras in the area of the cafe, and still photos were tendered of the three sitting in the cafe.

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.

Continue reading Kho v The Queen

Details

AGLC: Kho v The Queen [2012] NSWCCA 71
Case: [2012] NSWCCA 71
Decision Date: 26 April 2012

CaseChat Overview and Summary

The appeal was brought by Kho against The Queen, concerning the conviction of Kho on charges of conspiracy to import a commercial quantity of a controlled drug. The case was heard in the High Court of Australia. The appellant argued that the trial was unfair due to the incompetence of his counsel, who failed to investigate evidence from a co-accused. Furthermore, it was argued that the admission of irrelevant evidence, specifically that Kho was under surveillance prior to the commission of the offence, contributed to the unfairness. The appellant also claimed that an interruption of his cross-examination by the trial judge amounted to a mistrial.

The court was required to determine whether the appellant's conviction should be quashed due to the incompetence of counsel, the admission of irrelevant evidence, and the interruption of cross-examination. The central issue was whether these factors combined to deprive the appellant of a fair trial, warranting a new trial or an acquittal. The court considered the legal principles surrounding the competency of counsel, the relevance of evidence, and the impact of judicial intervention on the fairness of the trial.

The High Court found that while the counsel's failure to investigate the co-accused's evidence was a significant lapse, it did not alone constitute incompetence. However, the admission of the surveillance evidence was deemed irrelevant and prejudicial, which, combined with other factors, contributed to the unfairness of the trial. The court also held that the judge's interruption of cross-examination, while serious, did not alone amount to a mistrial. Nevertheless, the cumulative effect of these issues warranted a new trial. The court quashed the conviction and ordered a retrial, emphasising the importance of a fair trial and the role of competent legal representation.

No further orders were made beyond the quashing of the conviction and the ordering of a retrial. The court's decision underscored the importance of ensuring that trials are conducted fairly and that counsel provides competent representation. The ruling serves as a reminder of the courts' vigilance in protecting the rights of defendants and the need for adherence to the principles of natural justice.

Orders