Lau v R

Case [2014] NSWCCA 179 12 September 2014

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lau v R [2014] NSWCCA 179
Hearing dates: 02/07/2014
Decision date: 12 September 2014
Before: Hoeben CJ at CL at [1]
Harrison J at [130]
McCallum J at [131]
Decision:
(i) An extension of time be granted within which the applicant can seek leave to appeal against conviction.
(ii) Grant leave to the applicant to appeal against conviction.
(iii) Dismiss the appeal against conviction.
(iv) In relation to the application for leave to appeal against sentence, grant leave to appeal.
(v) Allow the appeal against sentence.
(vi) Quash the sentence imposed on the applicant by Flannery DCJ on 10 May 2012.
(vii) In lieu thereof the applicant is re-sentenced to a term of imprisonment with a non-parole period of 6 years, commencing 30 October 2010 and expiring 29 October 2016, with a balance of term of 3 years expiring 29 October 2019.

Catchwords: CRIMINAL LAW - CONVICTION APPEAL - attempting to possess a commercial quantity of an unlawfully imported border control drug - 102 kilograms of pure heroin - whether a miscarriage of justice because of lack of qualifications of expert interpreter called in Crown case - whether verdict of jury unreasonable or could not be supported by the evidence - whether evidence as to flight properly admitted - evidence of Crown expert not misleading - differences in interpretation between Crown and defence experts not of significance in conduct of trial - differences in interpretation adequately explained by differences in audio equipment - strong circumstantial Crown case - on whole of the evidence open to the jury to be satisfied beyond reasonable doubt as to guilt - evidence of flight properly admitted - no breach of s137 of the Evidence Act 1995 in admitting evidence of flight - conviction appeal dismissed - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - whether principle of parity properly taken into account - no significant difference in level of criminality between applicant and co-offender - differences in subjective case of applicant and co-offender - sentence of co-offender manifestly inadequate - parity principle not properly applied - need for applicant to be re-sentenced.
Legislation Cited: Criminal Code (Cth) - ss 11.1(1), 307.5(1)
Evidence Act 1995 - s79,s135, s137
Cases Cited: DJS v R; NS v R [2009] NSWCCA at [8], [11], [55] - [56], [135] and [136]
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
M v R [1994] HCA 63; 181 CLR 487
MFA v R [2002] HCA 53; 213 CLR 606
R v Burton [2013] NSWCCA 335 at [161] - [171]
R v Cook [2004] NSWCCA 52
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [60], [64], [74]
R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [2], [42], [86] - [87], [171], [175]
Ristevski v R [2007] NSWCCA 87
SKA v R [2011] HCA 13; 243 CLR
Category: Principal judgment
Parties: Nam Leung…

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 Lau v R

Details

AGLC: Lau v R [2014] NSWCCA 179
Case: [2014] NSWCCA 179
Decision Date: 12 September 2014

CaseChat Overview and Summary

The appeal in Lau v R concerned a conviction for attempting to possess a commercial quantity of an unlawfully imported border control drug, specifically 102 kilograms of pure heroin. The appeal was heard by the High Court of Australia. The appellant challenged the conviction on several grounds, including the qualifications of the expert interpreter used in the Crown's case, the admissibility of evidence of flight, and the reliability of the Crown's expert evidence. Additionally, the appellant sought leave to appeal against the sentence, arguing that the principle of parity had not been properly applied.

The court was required to determine whether the appellant's conviction was a miscarriage of justice due to the lack of qualifications of the expert interpreter, whether the jury's verdict was unreasonable or unsupported by the evidence, and if the evidence of flight was properly admitted. The court also needed to assess whether the Crown's expert evidence was misleading and whether differences in interpretation between the Crown and defence experts were significant in the conduct of the trial.

The High Court found that the lack of qualifications of the expert interpreter did not constitute a miscarriage of justice, as the differences in interpretation were adequately explained by differences in audio equipment. The court held that the evidence of flight was properly admitted and did not breach section 137 of the Evidence Act 1995. The court concluded that the Crown's case was strong circumstantially and that it was open to the jury to be satisfied beyond reasonable doubt as to the appellant's guilt. However, the court found that the principle of parity had not been properly applied in sentencing, as there was no significant difference in the level of criminality between the appellant and his co-offender, and the co-offender's sentence was manifestly inadequate.

The conviction appeal was dismissed, but the court granted leave to appeal against the sentence, finding that the principle of parity had not been properly applied. The case was remitted to the sentencing court for re-sentencing.

Orders