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 represented the applicant. Further witnesses were called in his case and a letter said to be of a threatening nature written by Nguyen to him after the commission of the offences was admitted into evidence (Exhibit L 3).

8 On 10 August 2006, the case for the applicant was closed and there was no case in reply. Following discussions with counsel, the sentencing Judge made directions as to written submissions. Submissions for the applicant were to be filed and served before 4 September 2006.

9 On 19 September 2006 oral submissions were made which supplemented the written submissions which his Honour referred to as being “very comprehensive and helpful” (POS 19/09/06 p6). The proceedings were adjourned to 29 September 2006 at 2pm for sentence. The sentencing Judge informed counsel that he did not require them to be present so long as someone was present to represent their clients.

10 On 29 September 2006, Mr Whitehead with the consent of the Crown tendered a faxed letter from Nguyen addressed to the sentencing Judge. It seems that the letter was tendered as an expression of Nguyen’s contrition and remorse for his offending. Mr Marsh, a solicitor, was then appearing for the applicant as Mr O’Neil had been previously excused. The applicant’s legal representatives had reasonably understood that the sentencing Judge would hand down his reason for sentence on that day.

11 The Crown did not object to the tender of the letter pointing out, as Mr Whitehead had done, that its contents had not been tested and submitted that not much weight be given to it. The letter was marked exhibit N2 (POS 29/09/06 p4). After the letter was tendered, his Honour informed Mr Marsh that he was “not going to get to his client today” and a fresh date being 20 October 2006 was fixed for sentence. Mr Marsh then left.

12 The sentencing Judge discussed with Mr Whitehead what he should make of the letter during which he said (POS 29/09/06 p5 L47-51):

“ There’s a conflict between what he has written and what Mr Le has said to me under oath. I’ve got to separate both cases and deal with them individually as I’ve indicated I would but therein lies the problem. ”

13 In the course of discussion concerning Nguyen being called the following exchange took place (POS 29/09/06 p10 L38-49):

“ WHITEHEAD: If he gets in the witness box I just wonder whether Mr Le should know, Le’s representative should know that because if he adopts what I’m about to get him to adopt in that letter, then there’s some references to --
HIS HONOUR: But they’re separate cases though aren’t they and --
WHITEHEAD: I’d love to leave them as far apart as possible but I just – they may not feel that way. I’m expressing caution that’s all your Honour.”

14 It is regrettable that the sentencing Judge did not heed Mr Whitehead’s words of caution as the events giving rise to this appeal would not have occurred.

15 In the absence of the applicant and his legal representatives, Nguyen was called to give evidence and was cross-examined by the Crown. Much of his evidence went directly, as the applicant contends, to the issue of whether he had been responsible for inflicting any duress upon the applicant. Furthermore, most of the evidence which he gave relevant to that issue was not put to the applicant by Nguyen’s counsel in cross-examination. Upon completion of Nguyen’s evidence the proceedings were adjourned to 20 October 2006.

16 On that day the sentencing Judge, inter alia, informed Mr Marsh that after he had left the courtroom on 29 September the letter (exhibit N2) had been tendered and that leave had been given to re-open Nguyen’s case. Nguyen, his Honour said, “gave evidence in terms denying any threats” towards the applicant.

17 The following exchange then took place (POS 20/10/06 p2 L 1- 48):

“ HIS HONOUR: And dealing generally with his involvement and expressions of remorse et cetera. Now the problem that arises as a result of that is that I have to deal with that evidence with regard to the question of duress in the absence of the opportunity you had firstly to hear the evidence and secondly to cross-examine or have Mr Nguyen cross-examined upon those matters if it was desired to do so, nor do I have any benefit of submissions from --
MARSH: Any your Honour against a background of the defendant Le not having been cross-examined on Mr Nguyen’s instructions in the course of his evidence.
HIS HONOUR: Yes. Well I can indicate that I’ve come to a view upon the evidence before me but with regard to what your client has had to say about those matters I have not brought to account what Nguyen has said in the course of his evidence (my underlining). It’s been a complex exercise because I’ve had to look at who had the onus of proof of establishing these matters in each case and how to approach the matter. I’ve raised these matters to ascertain whether you had any application to make with regard to the cross-examination of Mr Nguyen. I’m not suggesting that you should do that but I just don’t want to move forward without giving you the opportunity.
MARSH: Yes it’s a matter I’ll take instructions on, I suspect that won’t be the case your Honour.

MARSH: Your Honour of course I’ve not seen the letter that’s before your Honour.

MARSH: Nor have I looked at the transcript of the evidence that Mr Nguyen gave before your Honour on the last occasion.
HIS HONOUR: And there’s no transcript available at least at this stage.
MARSH: Yes, yes but your Honour perhaps if I could have a little time with my client to take some instructions on that and I can indicate our position shortly on it” .

18 And further (POS 20/10/06 p3 L 20-40):

“HIS HONOUR: All right. I can indicate that I’ve approached the matters individually, I’ve looked at the objective facts of the crown – advanced by the crown and then I’ve looked at the representations by each of the offenders and decided – or come to a view rather with regard to who has the onus of proof and the standard of proof applicable in each case and without bringing to – and I might say that the decision I made with – or the view I’ve reached so far with regard to Mr Le has not been modified by the evidence that was given by Nguyen (my underlining). But in any event I’ll allow you Mr Marsh if you would like to get some instructions.

HIS HONOUR: Do you need me to adjourn for that purpose, I can remain.
MARSH: I think It’d only be a matter of moments I’d suspect you Honour. No I’m instructed not to seek to cross-examine Mr Nguyen your Honour.”

19 Mr Marsh understood from the sentencing Judge’s remarks that his Honour did not intend to give any weight to Nguyen’s evidence in so far as it may have impacted upon the applicant’s case. He then informed his client of his understanding as a result of which he was instructed not to seek to cross-examine Nguyen.

20 It seems to me that his Honour had given a clear indication to the applicant’s solicitor that no weight would be given to Nguyen’s evidence in his assessment of the applicant’s case. Mr Marsh’s comprehension of what was said was entirely reasonable.

21 In any event, cross-examination of Nguyen by Mr Marsh would not have cured the unfairness which had occurred. Mr O’Neil had been the applicant’s counsel during the sentencing proceedings and his presence had been excused. Written and oral submissions had been made. A transcript of what had been said was not available and the legal representatives for the applicant had not been afforded the opportunity to consider it. Furthermore, the applicant had not been cross-examined on many of the matters deposed to by Nguyen.

22 It was open to his Honour to adjourn the proceedings to enable Mr O’Neil to be informed of what had transpired and for the transcript to be obtained. An application could then have been made to cross-examine Nguyen and to recall the applicant so that he might be given a proper opportunity to deal with Nguyen’s evidence.

23 The sentencing Judge then sentenced both offenders. During his remarks on sentence he gave careful consideration to the issue of duress. As the alleged threats made by Nguyen to the applicant were, in the case of Nguyen, to be taken into account as an aggravating factor, the onus was on the Crown to prove the threats beyond reasonable doubt. His Honour was not satisfied beyond reasonable doubt that Nguyen threatened the applicant as he had alleged. The sentencing Judge then considered whether the applicant had persuaded him on the balance of probabilities that he was at the time of the offences acting under duress and determined that he had not. The sentencing Judge’s remarks detail the reasons the applicant’s evidence on the issue of duress was not accepted.

24 Before considering the issue of duress his Honour said (ROS at 19):

“ The effect of what Hulme J has said in that decision, [ie Marchant v Regina; Crawt v Regina [2006] NSWCCA 120] if I have understood his Honour correctly, allows for this Court to consider and not disregard the evidence on behalf of the offender Nguyen when deciding whether the offender Le has met his burden of proof upon the balance of probabilities that he was acting under duress when he became involved in this enterprise. I propose to do so (my underlining) . Such is consistent with the authorities to which I have earlier referred. There is a qualification to this to which I will refer a little later. ”

25 It appears that the Judge, notwithstanding the indication to Mr Marsh, had determined that it was appropriate to give consideration to Nguyen’s evidence in the applicant’s case. His consideration was, however, to be qualified. The qualification, it seems, was expressed in the following passages in his sentencing remarks (ROS at 27-28):

“I said earlier that I propose to take into account evidence led on behalf of the offender Nguyen when deciding whether the offender Le was met his burden of proof upon the balance of probabilities that he was acting under duress. I also indicated at that point in these reasons that there was a qualification to this. In light of the fact that there has been no cross-examination of Nguyen on behalf of Le, and notwithstanding that the opportunity to do so has not been taken up on behalf of the offender Le, I will take care of the extent that I am able to ensure that there is no unfairness to Mr Le arising from those developments in these proceedings. ”

And (ROS at 31):

“ As I have indicated earlier, in reaching my decision upon this I have not overlooked that the evidence led from Nguyen was not in the presence of Le and that he was not cross-examined by counsel appearing for Le. Nor have I had any submissions from Mr Le’s counsel upon whether or not I should bring to account the evidence from Nguyen upon this question, and if so, how it might be dealt with. I note that the written submissions provided by Le’s counsel were prepared and submitted by email before Nguyen had given evidence challenging these assertions by Le .”

26 With respect, the sentencing Judge’s reasons are unclear. Quite frankly, I am unable to discern how Nguyen’s evidence was treated. It might be that his Honour intended to give his evidence little weight. Even if that is what his Honour did, the fact that Nguyen’s evidence was considered at all created unfairness.

27 It is evident from the sentencing Judge’s remarks that Nguyen impressed him as a witness. His Honour said (ROS at 30):

“I am satisfied from the content of the evidence given by Nguyen and his demeanour before me that he was doing his best to tell the truth about his commission of these offences and the reasons for having become involved.”

28 His Honour’s assessment of Nguyen was made on evidence which the applicant had not properly been given the opportunity to challenge.

29 Procedural fairness required that Nguyen’s evidence be given when the applicant and his counsel were present and could challenge it. Procedural fairness also called for the opportunity to be provided to the applicant in further evidence to deal with what Nguyen had said. In my view, the applicant was denied procedural fairness and a miscarriage of justice occurred.

30 The applicant was sentenced to imprisonment with an aggregate non-parole period of two and a half years with a balance of term of two and half years structured as follows:

“Count 1: Non parole period of 2 ½ years to commence on 20 October 2006 and expire on 19 April 2009 with a balance of term of 2 ½ years to expire on 19 October 2011.
Counts 2, 3 & 4: Concurrent non parole periods of 2 years to commence on 20 October 2006 and expire on 19 October 2008 with balances of term of 1 year to expire on 19 October 2009.”

31 The Crown contends that even if the sentencing Judge erred this Court could not be satisfied that any cross-examination of Nguyen on behalf of the applicant would have made a material or significant impact on the exercise of his Honour’s sentencing discretion in imposing the sentence he ultimately did. With this submission I do not agree. The finding on the issue of duress was relevant to the assessment of the applicant’s culpability for the offending. The Judge found that the applicant “should bear equal responsibility for the violence in which he acquiesced and continued to exploit as further money was taken from the victim” (ROS 37.8). Such a finding would not have been made if his Honour had been satisfied that the applicant acted under duress.

32 In the present case an appropriate sentence may only be determined when a finding is made on the issue of duress and the parties have been afforded procedural fairness. This Court is unable to determine whether some other sentence is warranted in law and should have been passed: s6(3) of the Criminal Appeal Act 1912.

33 The finding of the relevant facts is critical to the determination of the appropriate sentence. It is the duty of the sentencing Judge to find those facts according to law. The relevant facts are best determined by a sentencing Judge and not by this Court.

34 I propose that:

(i) Leave to appeal be granted if required;

(ii) Appeal allowed;

(iii) The sentences imposed on counts 1, 2, 3 and 4 be quashed;

(iv) The matter be remitted to the District Court to there be heard and determined by a Judge of that Court according to law.
(v) 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.


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