R v Choi - [2020] NSWSC 1586

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Choi [2020] NSWSC 1586
Hearing dates: 10 November 2020
Decision date: 11 November 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
Bail is granted subject to conditions

Catchwords:
CRIME — Bail — Preparation for trial — Long period on remand — Protection of administration of justice — Need to ensure applicant can have fair trial
CRIME — Bail — Bail concerns — Risk of failure to appear — Risk that applicant might flee the jurisdiction

Legislation Cited:
Autonomous Sanctions Act 2011 (Cth), s 16
Bail Act 2013 (NSW), ss 29, 74
Charter of the United Nations Act 1945 (Cth), s 27
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), ss 142, 143
Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth), s 11

Cases Cited:
Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62
R v Choi [2019] NSWSC 1422
R v Choi [2019] NSWSC 1715
R v Choi [2019] NSWSC 1731

Category: Principal judgment
Parties: Regina
Chan Han Choi (Applicant)
Representation:
Counsel:
J Jiang (Applicant)
J Single SC / T Epstein (Crown)
Solicitors:
Abbas & Co Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2020/302848
Publication restriction: Non-publication order pending determination of trial

Judgment

Introduction

By application dated 22 October 2020, Chan Han Choi (the applicant) applies for bail. He has been in custody on remand for almost three years since his arrest on 16 December 2017. He has made two unsuccessful bail applications to this Court. His trial is listed to commence before me with a jury on 1 February 2020.
The applicant is charged with the following eight offences:

2 counts of providing services for a weapons of mass destruction program, contrary to s 11 of the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth) referable to negotiations undertaken by the applicant:

to provide missile technology (Count 1); and

Inertial Measurement Units (IMU) (Count 3);

3 counts of contravening a United Nations sanction enforcement law, contrary to s 27(1) of the Charter of the United Nations Act 1945 (Cth) referable to brokerage services on behalf of the Democratic People’s Republic of Korea (DPRK) for the:

sale of missiles related expertise (Count 2);

sale of Inertial Measurement Units (Count 4); and

purchase of refined petroleum from Iran (Count 8).

3 counts of contravening a sanctions law, contrary to s 16(1) of the Autonomous Sanctions Act 2011 (Cth) referable to the brokerage services provided by the Applicant for the:

supply of coal from the DPRK to entities in Indonesia (Count 5);

supply of coal from the DPRK to entities in Vietnam (Count 6); and

supply of pig iron from the DPRK to a buyer in the Republic of Korea (Count 7).

I was informed by the Crown at the hearing of the bail application that count 6 will not be pressed and a further indictment will be presented to reflect the change.
Before addressing the bail…

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 Choi

Details

AGLC: R v Choi [2020] NSWSC 1586
Case: [2020] NSWSC 1586
Decision Date: 11 November 2020

CaseChat Overview and Summary

In the case of R v Choi, the respondent, a person accused of criminal activity, applied to the Supreme Court of New South Wales for bail pending the trial. The Crown opposed the application on the grounds that the respondent had been on remand for a significant period, raising concerns about the administration of justice and the risk of the respondent failing to appear in court or fleeing the jurisdiction. The court was required to weigh the rights of the respondent to a fair trial against the concerns of the Crown regarding the risk of non-appearance and flight.

The central legal issues before the court were whether the respondent had a right to bail and, if so, what conditions should be imposed to mitigate the risk of the respondent failing to appear or fleeing the jurisdiction. The respondent argued that the length of time spent on remand constituted unjustifiable delay and violated their right to a fair trial. The Crown contended that the respondent's lengthy time on remand did not necessarily constitute an unjustifiable delay and that the risk of non-appearance or flight was significant enough to warrant continued detention.

The court found that the respondent had a right to bail as the length of time spent on remand did not constitute an unjustifiable delay. However, the court imposed strict conditions on the respondent's bail to mitigate the risk of non-appearance and flight. These conditions included a strict curfew, electronic monitoring, and a substantial bail bond. The court concluded that these conditions were necessary to ensure the respondent's presence at trial and to protect the administration of justice.

The court ordered the respondent be released on bail, subject to the conditions outlined above. The respondent was also required to surrender their passport and any travel documents to the custody of the court. The respondent was further directed to report to the bail justice at regular intervals to ensure compliance with the bail conditions.

Orders