Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68
Hearing dates:
23 August and 12-13 November 2012
Decision date:
03 April 2013
Before:
Basten JA at [1]; Hall J at [237]; Beech-Jones at [247]
Decision:
(1) With respect to the convictions of Mr Jason Lee:
(a) grant leave to appeal on grounds 1(a) and (b) and 5, but refuse leave with respect to grounds 2, 3, 4 and 6;
(b) with respect to the grounds the subject of a grant of leave, dismiss the appeal.
(2) With respect to the convictions of Mr Seong Won Lee on counts 1-4 and 7:
(a) grant leave to appeal on each ground, other than ground 2;
(b) with respect to the grounds the subject of a grant of leave, dismiss the appeal.
Catchwords:
CRIMINAL LAW - appeal - applicants questioned at a hearing before the New South Wales Crime Commission - non-publication direction under s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) - transcripts of interview and compelled documents provided to Director of Public Prosecutions in breach of non-publication direction - concession that provision of material unlawful - whether provision of materials to the Director denied the applicants' right to a fair trial or otherwise created a miscarriage of justice
ADMINISTRATIVE LAW - functions of the New South Wales Crime Commission - obligation to furnish admissible evidence on the Director - whether obligation limits the power of the Commission to furnish other material to the Director
CRIMINAL LAW - appeal - failure to warn the jury about particular matters relevant to the reliability of a witness - whether the trial judge misdirected the jury
CRIMINAL LAW - appeal - whether verdicts were unreasonable and unsupported by the evidence - approach of appellate court in determining this ground - evidence in support of the case circumstantial - evidence of key witness consistent with this evidence - reliability and adequacy of witness's evidence in question - where the jury had the advantage of assessing the witness
CRIMINAL LAW - appeal - where applicant alone charged with possession - where trial judge gave directions allowing the applicant to be convicted on the basis of joint possession - whether the trial judge misdirected the jury
CRIMINAL LAW - appeal - applicants charged with supply of prohibited drugs - one applicant charged in the alternative with knowingly taking part in supply - trial judge gave directions allowing conviction on the basis of joint possession with others, or individually - whether trial judge misdirected the jury
CRIMINAL LAW - appeal - evidence - nature of "consciousness of guilt" reasoning
[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.
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AGLC
Lee v The Queen [2013] NSWCCA 68
Case
[2013] NSWCCA 68
Decision Date
CaseChat Overview and Summary
The applicants, Lee and another, were convicted of various drug-related offences and appealed against their convictions. The appeal raised several issues, including whether the provision of compelled documents and transcripts to the Director of Public Prosecutions in breach of a non-publication direction denied the applicants their right to a fair trial, whether the trial judge misdirected the jury on the issue of joint possession, and whether the verdicts were unreasonable and unsupported by the evidence. The applicants also argued that the trial judge failed to warn the jury about matters relevant to the reliability of a key witness.
The court considered whether the provision of compelled documents to the Director of Public Prosecutions in breach of a non-publication direction denied the applicants their right to a fair trial. The court found that the provision of the material was unlawful, but it did not create a miscarriage of justice. The court also considered whether the New South Wales Crime Commission was obliged to furnish admissible evidence to the Director and whether this limited the Commission's power to furnish other material. The court found that the obligation to furnish admissible evidence did not limit the Commission's power to furnish other material. The court then considered whether the trial judge misdirected the jury on the issue of joint possession. The court found that the trial judge did not misdirect the jury.
The court considered whether the verdicts were unreasonable and unsupported by the evidence. The court noted that the evidence in support of the case was circumstantial and that the reliability and adequacy of the key witness's evidence was in question. However, the court found that the jury had the advantage of assessing the witness and that the verdicts were not unreasonable or unsupported by the evidence. The court also considered whether the trial judge misdirected the jury on the issue of "consciousness of guilt" reasoning. The court found that the trial judge did not misdirect the jury on this issue.
The appeal was dismissed. The court found that the provision of compelled documents to the Director of Public Prosecutions in breach of a non-publication direction did not deny the applicants their right to a fair trial, that the trial judge did not misdirect the jury on the issue of joint possession, and that the verdicts were not unreasonable or unsupported by the evidence.