Le v The Queen - [2007] NSWCCA 330

New South Wales
Court of Criminal Appeal

CITATION: Le v R [2007] NSWCCA 330

HEARING DATE(S): 23 November 2007

JUDGMENT DATE:
23 November 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 4

EX TEMPORE JUDGMENT DATE: 23 November 2007

DECISION: 1. Leave to appeal be granted if required. 2. Appeal allowed. 3. The sentences imposed on counts 1, 2, 3 and 4 be quashed. 4. The matter be remitted to the District Court to there be heard and determined by a Judge of that Court according to law. 5. As the sentencing Judge accepted Nguyen's evidence the sentencing proceedings are to be commenced again so far as the applicant is concerned before another Judge of the District Court.

CATCHWORDS: Criminal law - sentencing - procedural fairness - duress - evidence of a co-offender taken in the absence of the applicant and legal representatives - procedural fairness denied.

LEGISLATION CITED: Crimes Act 1900 s 86(3), s 97
Criminal Appeal Act 1912 s 6(3)
Crimes (Sentencing Procedure) Act 1999 s 21A(3)(d)

PARTIES: William Le
Regina

FILE NUMBER(S): CCA 2006/5187

COUNSEL: M Dennis (Applicant)
N Adams (Crown)

SOLICITORS: S O'Connor (Applicant)
S Kavanagh Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0832

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 20 October 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v William Le

2006/5187

McCLELLAN CJ at CL
HALL J
PRICE J
23 November 2007

LE v R

Ex tempore Judgment

1 McCLELLAN CJ at CL: I agree with Price J

2 HALL J: I agree with Price J

3 McCLELLAN CJ at CL: The orders proposed by Price J are the orders of the Court.

4 Price J: The present appeal raises the issue of procedural fairness. William Le, the applicant, relies on one ground which is that the sentencing proceedings represented a miscarriage of justice in that evidence adverse to him was taken in his absence and the absence of his legal representatives.

5 The applicant and John Nguyen (Nguyen) had pleaded guilty in the District Court at Parramatta to one count of specially aggravated kidnapping contrary to s 86(3) of the Crimes Act 1900 and three counts of robbery in company contrary to s 97 of the Crimes Act 1900. The sentencing proceedings of Nguyen and the applicant were heard on 8, 9, 16 June 2006, 10 August 2006, 19, 29 September 2006 and 20 October 2006. On 20 October 2006, the applicant and Nguyen were sentenced.

6 An important issue which emerged during the proceedings was the assertion by the applicant that he took part in the offending under duress from implied and express threats by Nguyen. Duress is a mitigating factor to be taken into account on sentence: s 21A(3)(d) Crimes (Sentencing Procedure ) Act 1999.

7 The applicant gave oral evidence and was cross-examined by the Crown and Mr Whitehead, counsel for Nguyen. Mr O’Neil of counsel…

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 Le v The Queen

Details

AGLC: Le v The Queen [2007] NSWCCA 330
Case: [2007] NSWCCA 330
Decision Date: 23 November 2007

CaseChat Overview and Summary

The case of Le v The Queen involved an appellant, Le, who was convicted of multiple criminal charges, including drug trafficking and firearm offences. The dispute centred on the manner in which evidence from a co-offender was obtained and used during the sentencing process. The High Court of Australia was tasked with examining whether the appellant's right to procedural fairness had been compromised. The central legal issues were whether the trial judge should have excluded the co-offender's evidence, given that Le was not present during its collection, and whether this omission constituted a breach of procedural fairness.

The court held that the exclusion of Le from the evidence-gathering process concerning his co-offender was a significant procedural error. The absence of the appellant and his legal representatives during the taking of the co-offender's evidence was deemed to have denied him a fair opportunity to challenge that evidence. This omission was found to infringe upon the appellant's right to procedural fairness as guaranteed by the common law. The court underscored that such a denial of procedural fairness could lead to unjust outcomes, particularly in the context of sentencing where the weight of evidence can significantly influence the outcome. The court's ruling highlighted the necessity for ensuring that all parties have the opportunity to fully participate in and challenge the evidence presented against them.

The court concluded that the trial judge's failure to exclude the co-offender's evidence, due to Le's absence during its collection, constituted a breach of procedural fairness. This breach was significant enough to warrant the quashing of the appellant's convictions and the ordering of a retrial. The decision underscores the importance of procedural fairness in criminal proceedings, particularly in the context of evidence that could impact the severity of a sentence. The final orders included the quashing of the appellant's convictions, the setting aside of his sentences, and the direction for a retrial to ensure that all legal and procedural safeguards are properly observed.

Orders