Regina v Wei Ming Chen Regina v Saud Siregar Regina v Sidiki Ismunandar Regina v Khong Hoi Lau
JUDGMENT OF:
Heydon JA; Sully J; Levine J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S) :
00/11/0061 00/11/0371 99/11/0730 99/11/0375
LOWER COURT JUDICIAL OFFICER :
Shadbolt DCJ
COUNSEL :
E L Fullerton SC (Crown A J Bellanto QC/P Lowe (Chen) A M Barrie (Siregar) D G Dalton (Ismunandar) A J Bellanto QC/P Lowe (Lau)
SOLICITORS:
Commonwealth DPP (Crown) Raymond Lee & Co (Chen) George Sten & Co (Siregar) Freemans (Ismunandar) Borak & Co (Lau)
CATCHWORDS:
Criminal law - Customs Act 1901 (Cth) s 233B - importation of prohibited goods -narcotics - heroin - appellants convicted at trial - appeal against conviction and sentence - Courts - jurisdiction - inherent powers - acts of Commonwealth marine vessel in pursuit of appellants' vessel - pursuit of compulsive nature - whether nature of pursuit deprived court of jurisdiction - whether proceedings an abuse of process - Evidence - admissibility - Evidence Act 1995 (NSW) s 138 - discretion to exclude illegally or improperly obtained evidence - whether seizure and search of marine vessel within Australian waters unlawful or irregular - whether evidence so obtained colourable by any such unlawful or irregular conduct - whether admission of evidence a miscarriage of discretion - Constitutional law - judicial powers - Constitution Act 1901 (Imp) s 71 - whether power of Director of Public Prosecutions under Crimes Act 1914 (Cth) s 21E to apply to Court for increase of sentence an exercise of Commonwealth judicial power - Evidence - admissibility - Evidence Act 1995 (NSW) s 102 - whether evidence of undertaking relevant only to a witness' credibility - evidence of witness' status - Criminal law - sentence - serious drug offences - life term without parole - principles relating to orders for
[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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Details
AGLC
R v Chen [2002] NSWCCA 174
Case
[2002] NSWCCA 174
Decision Date
CaseChat Overview and Summary
In the case of R v Chen, the appellants were convicted at trial for the importation of prohibited goods, specifically heroin, in contravention of section 233B of the Customs Act 1901 (Cth). The appellants appealed against their conviction and sentence, raising several grounds, including the jurisdiction of the court, the admissibility of evidence, and the constitutionality of the Director of Public Prosecutions' power under section 21E of the Crimes Act 1914 (Cth) to apply to the Court for an increase in sentence. The case also involved the legality of the pursuit of the appellants' vessel by a Commonwealth marine vessel and the nature of the subsequent search and seizure of the vessel.
The central legal issues in the case revolved around whether the pursuit and subsequent actions of the Commonwealth marine vessel deprived the court of jurisdiction, whether the proceedings constituted an abuse of process, and whether the evidence obtained during the search and seizure was admissible under the Evidence Act 1995 (NSW). The appellants argued that the pursuit was compulsive in nature and that the search and seizure were unlawful or irregular, thus making the evidence obtained inadmissible. They further contended that the Director of Public Prosecutions' power to apply for an increase in sentence amounted to an exercise of Commonwealth judicial power in contravention of section 71 of the Constitution Act 1901 (Imp).
The court considered the arguments raised by the appellants and ultimately determined that the pursuit and search were lawful and did not deprive the court of jurisdiction. The court found that the evidence obtained during the search and seizure was admissible, as it was not obtained through any unlawful or irregular conduct. Additionally, the court held that the power of the Director of Public Prosecutions to apply for an increase in sentence did not constitute an exercise of Commonwealth judicial power. The court rejected the appellants' challenges to the conviction and sentence, affirming the trial court's decision. As a result, the appeal was dismissed, and the appellants' convictions and sentences were upheld.