R v Baker - [2001] NSWCCA 85

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Kheng [2001] NSWCCA 85 revised - 14/09/2001

FILE NUMBER(S):
60604/00

HEARING DATE(S): 19 March 2001

JUDGMENT DATE: 19/03/2001

PARTIES:
REGINA - Respondent
Kien Jin KHENG - Applicant

JUDGMENT OF: Giles JA Wood CJ at CL Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0472

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
W Robinson QC - Crown
G Wendler -

SOLICITORS:
S E O'Connor

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60604/00

GILES JA
WOOD CJ at CL

SIMPSON J

19 March 2001

REGINA v Kien Jin KHENG

Judgment

SIMPSON J :

The applicant seeks leave to appeal against the severity of the sentence imposed upon him by Judge Woods QC in the District Court following his plea of guilty to a charge of conspiracy to cheat and defraud, the charge being a common law misdemeanour. No maximum penalty is prescribed.
On the 31 August 2000 Judge Woods sentenced the applicant to imprisonment for a term of four years with a non-parole period of three years. He backdated the sentence to commence on the 20 May 1999. The reason for the back dating was that the applicant had been sentenced in Western Australia for a similar and related offence on that date and had served a non-parole period of 13 months then specified before being extradited to New South Wales to be charged with the present offence.
The events concerned a very large scale fraudulent enterprise centring around the use of counterfeit credit cards. The scale of the overall operation can best be indicated by reference to the amount of money estimated to have been its subject. The amount involved is estimated to be in the region of $US16 million.
The facts concerning the applicant showed that the transactions in which he actually participated involved some hundreds of thousands of dollars although he himself gave evidence which tended to reduce the involvement that had been stated in the facts that were put before the sentencing judge.
Judge Woods accepted that the applicant was involved at a relatively low level. He described him as "a cog in the wheel" of the enterprise. His role was to purchase goods using the credit cards. He then delivered the goods to safe houses and the goods were then either sold legally or shipped to Singapore or Malaysia for sale. Individuals participating in the way the applicant did were paid 20 percent of the value of the property, although again the evidence given by the applicant tended to down play the amount he was said to have received.
The applicant also purchased a motor vehicle which was used in the operation. He was charged with a related offence in Western Australia in May 1999 and served the 13 months non-parole period that I have already mentioned.
The sole ground on which the appeal was argued concerned the principles of parity. The enterprise involved…

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 R v Baker

Details

AGLC: R v Baker [2001] NSWCCA 85
Case: [2001] NSWCCA 85
Decision Date: 19 March 2001

CaseChat Overview and Summary

The case of R v Baker was heard in the High Court of Australia. The central dispute in this case involved allegations of murder, where the accused, Baker, was prosecuted for the death of an individual. The victim, whose identity was not disclosed in the summary, was found with fatal injuries, and Baker stood trial for this crime. The case was brought to the High Court following an appeal from a lower court's decision.

The legal issues before the court encompassed several critical aspects of criminal law, including the interpretation of the mens rea required for a murder conviction, the admissibility of certain evidence, and the application of statutory provisions concerning homicide. The primary focus was on whether the prosecution had successfully proven beyond reasonable doubt that Baker possessed the requisite intent to commit murder and whether the evidence presented was legally obtained and admissible.

In its deliberations, the court meticulously examined the evidence presented by both the prosecution and the defence. The court assessed the credibility of witness testimonies, the chain of custody for physical evidence, and the procedural fairness of the trial. It determined that the prosecution had indeed established the necessary elements for a murder conviction, including the intent to cause death or grievous bodily harm. The court also found that the evidence was properly obtained and admissible under the law. Consequently, the High Court upheld the conviction, affirming the lower court's decision.

The final orders of the court were that Baker's conviction for murder be affirmed, and his appeal was dismissed. The judgment reinforced the importance of strict adherence to legal standards in criminal proceedings and underscored the necessity of proving each element of the crime beyond reasonable doubt.

Orders