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

1. 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.

2. The applicant is charged with the following eight offences:

1. 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:

1. to provide missile technology (Count 1); and

2. Inertial Measurement Units (IMU) (Count 3);

2. 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:

1. sale of missiles related expertise (Count 2);

2. sale of Inertial Measurement Units (Count 4); and

3. purchase of refined petroleum from Iran (Count 8).

3. 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:

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

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

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

3. 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.

4. Before addressing the bail concerns raised by the Crown, it is convenient to summarise the procedural history of the matter to date since this both explains the lengthy period of remand and gives context to the present application for bail.

The procedural history of the matter

The arrest and charging of the applicant

5. As referred to above the applicant was arrested on 16 December 2017 and taken into custody. In 2018, following his arrest, the applicant was designated a National Security Inmate. The consequences of this designation are that all of the applicant’s visitors and callers and all mail received by him must be vetted. The vetting process involves obtaining information from law enforcement and other government departments. Generally speaking foreign nationals, other than consular staff or dignitaries, are not permitted to visit those with such a designation as such visitors cannot be easily vetted.

6. The matter remained in the Local Court until 19 December 2018 when the applicant was committed for trial in the District Court. Subsequently, leave was granted by the Supreme Court for the indictment to be filed in this Court and the matter was listed for arraignment on 1 March 2019.

The arraignment in this Court

7. On 3 May 2019 the applicant was arraigned on an indictment. He pleaded not guilty to all charges. Fullerton J, the then criminal list judge, set down the matter for a trial to commence on 24 February 2020 with an estimate of six weeks. The matter was listed for mention before her Honour on 6 September 2019 on which date the trial date was confirmed and the trial allocated to Harrison J. Directions were made that the notice of prosecution case, as required by s 142 of the Criminal Procedure Act 1986 (NSW), be filed and served on the applicant by 11 October 2019. The applicant was required to file and service a defence response in accordance with s 143 of the Criminal Procedure Act by 29 November 2019.

The applicant’s applications for a stay and for bail in 2019

8. On 10 September 2019 the applicant filed a notice of motion for a permanent stay, which was listed for hearing before Harrison J on 29 November 2019.

9. On 16 September 2019, the Crown served significant material which needed to be translated into Korean in order to be understood by the applicant.

The first bail application before Lonergan J in October 2019

10. Before the hearing of the application for a stay, the applicant applied for bail. One of the bases for the application was that the applicant needed to properly prepare his defence and that he did not have access to an interpreter in custody as the legal aid funding did not, at that stage, extend to the provision of an interpreter. His bail application was heard and refused by Lonergan J in October 2019: R v Choi [2019] NSWSC 1422. Her Honour was not persuaded that the bail concern raised by the Crown, that the applicant would not attend his trial, could be sufficiently ameliorated by a grant of bail on conditions.

The application for a permanent stay in November 2019

11. On 29 November 2019 the applicant was represented at the hearing of his application for a permanent stay by Mr T Woods of counsel who was instructed by Just Defence Lawyers. Mr Woods contended that a permanent stay ought be granted because the applicant felt that he could not freely communicate with his lawyers in gaol and that it was extremely difficult for the applicant to communicate with his lawyers because his English is not good and circumstances have seldom permitted the participation of an interpreter.

12. Harrison J reserved his decision, which was delivered on 5 December 2019: R v Choi [2019] NSWSC 1715. His Honour said, at [16]:

“It is clearly in everyone's interest that the scheduled commencement of the trial not be delayed for any reason. Mr Choi needs access to his lawyers and to the services of an interpreter or interpreters whenever necessary. In the event that it transpired that this had not been possible, it would be reasonable to expect that Mr Choi might make an application to vary the hearing date or stay the trial. Such an application would only be viable if it was plain that Mr Choi and his lawyers had made every reasonable effort to confer with the benefit of an interpreter as and when required but were nevertheless unable to do so. Having regard to the fact that the trial is not due to commence for approximately 12 weeks, I expect that will be adequate time for Mr Choi and his legal team to prepare for the hearing. In so saying, I accept that it is imperative that Mr Choi be given access to legal advice in a language that he completely understands before he can be expected to make properly informed decisions about important matters concerned with his defence of the serious criminal charges that he faces.”

The second bail application before Harrison J in December 2019

13. Following publication of the decision refusing his application for a stay, the applicant made a further application for bail which was heard by Harrison J on 20 December 2019. The principal bail concern raised by the Crown was that the applicant was a flight risk. Ms Epstein, who appeared for the Crown, gave examples in the course of her argument as to the flight risk posed by the applicant:

“I’ve had an opportunity to take some instructions, and if I could give you some practical examples of how the risk your Honour referred to might manifest. Firstly, as I understand it, given the accused’s alleged career, the principal concern would be that a legitimate passport could be issued by North Korean authorities in a different name but with the accused photographed on it and sent to Australia to another individual presumably in Australia.

Now, there would be nothing to stop that occurring. There would be nothing to stop a plane ticket being booked in the name on another passport, and there would be little that would alert the Australian authorities to that risk should it eventuate. My understanding is that the North Korean government also has sufficient ties with the Chinese government, that potentially a Chinese passport may also be issued. There is that potential as well.

Now, your Honour, as recently as early 2018 North Korean political leaders are reported to have travelled to overseas countries using false passports, so there are practical examples of this occurring. A second way in which this risk may manifest itself, and which has occurred in previous cases, is that a supporter of the accused who bears physical resemblance to the accused could simply give a passport or travel documentation to the accused. I understand that this is something that occurred in the case of Khaled Sharrouf, who was accused of terrorism. He managed to flee the jurisdiction using his brother's passport, and this was not picked up at the border because of the resemblance between the two individuals.

The third way the risk could manifest itself is I'm instructed that certain identity documents can be obtained in Australia, fake documents, for relatively low costs. But the first two issues are those that provide the more significant risk, in my submission. Neither of those require actual forgery occurring within Australia, nor funds being present within Australia or available to the accused or his Australian supporters in order for those risks to eventuate.”

14. His Honour found that the hurdle under s 74(1) of the Bail Act 2013 (NSW) had been overcome (change of circumstances since last bail application), which entitled the applicant to make a further bail application. His Honour considered that the difficulties in obtaining interpreting services were “still no closer to resolution” as it “has not been possible yet to identify a suitably qualified Korean interpreter who has been authorised to attend upon Mr Choi in custody”.

15. While his Honour accepted that flight risk was a concern, his Honour was also concerned about the unavailability of interpreting services. His Honour refused bail: R v Choi [2019] NSWSC 1731. His Honour said:

“[8]   I am, however, particularly concerned that the continuing absence of suitable arrangements for a reliable and effective regime in accordance with which Mr Choi can be assisted by an interpreter operates unfairly to him, and potentially subverts the possibility that he will be able to receive a fair trial, if that problem is not resolved soon. By soon I intend to indicate by no later than 31 December 2019. In the event that by then the problem created by Mr Choi's lack of access to a suitable interpreter had not completely resolved, I would consider that the risk that Mr Choi might flee the jurisdiction would have become outweighed by the risk of substantial injustice to him, in being effectively denied access to legal representation in his chosen language. Although it would be necessary to hear further submissions about it if required, a reagitation of a release application in such circumstances would arguably be difficult to resist.

[9]   As presently advised, I consider that the risk that Mr Choi might leave the jurisdiction remains unacceptable and cannot be mitigated by the imposition of suitable conditions.”

16. Although his Honour refused bail, he also granted liberty to apply on 48 hours’ notice no earlier than 2 January 2020.

17. Security clearance was granted by the Corrections Intelligence Group, Corrective Services, NSW, to a level 3 Korean interpreter on 24 December 2019. I was informed that although the legal aid funding extended to interpreting services, such services were limited to interpreting conferences with legal representatives but not for translating the brief of evidence which had been served.

Proposed appeal under s 5F of the Criminal Appeal Act 1912 (NSW)

18. On 20 January 2020, the applicant filed a notice of appeal under s 5F of the Criminal Appeal Act 1912 (NSW) against the refusal of his application for a permanent stay but withdrew the appeal on 30 January 2020.

The mention on 4 February 2020

19. The matter was listed for mention before Fullerton J on 4 February 2020. On that day, Mr Lange of counsel appeared on behalf of the applicant. Mr Lange informed the Court that his instructions, and those of his solicitors, to appear on behalf of the applicant had been withdrawn. Accordingly, he sought the Court’s leave to withdraw. The reason for the applicant’s withdrawal of instructions was said to be that he had had little or no contact with his legal representatives. The reason for the lack of contact was said to be that approval for the interpreter had only been granted by National Security Information on 30 December 2019 (which is to be contrasted with the date relied on by the Crown of 24 December 2019, see above), at which time the applicant’s counsel was on leave for a few weeks. Her Honour granted leave to the applicant’s legal representatives to withdraw.

20. Thereafter her Honour explained to the applicant, through an interpreter provided by the Crown, the benefits of legal representation and invited him to reconsider. The applicant was adamant that he did not want to re-engage his lawyers as he had already made a considered decision to proceed without them. Her Honour confirmed that the applicant’s trial would commence on 24 February 2020. At that point, the applicant sought an adjournment for 3-4 months as he would be representing himself and needed some time to prepare for his trial.

21. Her Honour arranged for contact to be made with Mr Choi’s former legal representatives (who had just withdrawn, with leave), who returned to the courtroom and were re-engaged by the applicant, who confirmed his instructions through Mr Lange. Fullerton J listed the matter for further mention before Harrison J on 17 February 2020, which was a week before the trial was due to commence.

22. The grant of legal aid continued but was conditional on the applicant retaining the same solicitors.

The issue of the applicant’s fitness for trial

23. The matter came before Harrison J for mention. On that day, Mr Lange, the applicant’s counsel, raised the issue of whether the applicant was fit to be tried. His Honour adjourned the trial of the matter for three weeks to 9 March 2020 in order that Dr Allnutt, forensic psychiatrist, could examine the applicant with a view to determining his fitness for trial.

24. On 4 March 2020, Harrison J vacated the trial dates and stood the matter over to 27 April 2020. On 27 April 2020, the fitness hearing was listed for 5 May 2020. On that day, the enquiry into the applicant’s fitness was heard. Dr Allnutt concluded that the applicant was “on balance … probably fit to stand trial” and “also probably fit to run his own trial”.

25. His Honour reserved his decision. On 8 May 2020, Harrison J found the applicant fit to be tried on the basis of Dr Allnutt’s opinion.

26. The matter was adjourned to the arraignments list before Fullerton J on 15 May 2020 at which time it was listed for trial on 1 February 2021 before me. On 15 May 2020, Mr Lange sought leave to withdraw as his instructions and those of his solicitor had been withdrawn by the applicant. The Crown indicated that the trial had an estimate of 8 weeks if the applicant were unrepresented and 6 weeks if he were represented.

27. In about the end of May 2020, the grant of legal aid was terminated as a consequence of the applicant withdrawing his instructions from his legal representatives. One of the consequences of the termination of legal aid was that the applicant no longer had the services of a qualified interpreter. Although the Crown was aware that the grant of legal aid was terminated, I was informed at the hearing of the bail application that the Crown did not appreciate that the applicant no longer had access to a qualified interpreter.

28. On 22 July 2020 the Legal Aid Review Committee dismissed the applicant’s appeal against the termination. The Committee gave the following reason:

“The Committee disallowed the appeal because the appellant has failed to cooperate in the preparation and progress of the case therefore it is not satisfied that the appellant complies with a condition of the grant.”

The present application for bail

29. As referred to above, the applicant has made another (the third) application for bail in this Court. He was legally represented for the application but not for the trial. Mr Jiang of counsel appeared on the applicant’s behalf on the bail application.

Whether the factors under s 74 of the Bail Act have been established

30. The matters on which the applicant relied to constitute a change in circumstances within the meaning of s 74 of the Bail Act are as follows:

1. his grant of legal aid was terminated in July 2020 as he had withdrawn instructions from his legal representatives;

2. if he remains in custody he will not be able to prepare adequately for his trial as he does not have access to an interpreter or to online translating services while he is in custody;

3. he has spent almost three years on remand;

4. the COVID-19 pandemic; and

5. there is increased surety available to safeguard against the risk of flight.

31. I am satisfied that factor (3) is sufficient to entitle this Court to consider a new bail application. When bail was refused by Harrison J on 20 December 2019, his Honour expected that the applicant would be tried in a trial which was to commence on 24 February 2020. That his trial was adjourned and is now listed almost a year later is a sufficient change of circumstances. I note that the Crown accepted that there was a change of circumstances.

32. As the offences with which the applicant has been charged are not “show cause” offences, whether bail ought be granted depends on whether the bail concerns raised by the Crown can be adequately ameliorated by a grant of bail on conditions.

The bail concern: failure to appear

33. The Crown raised the bail concern that, if bail is granted, the applicant will fail to appear at his trial. In support of its submission that there is a substantial risk that the applicant will not appear at his trial, the Crown relied on the objective seriousness of the offence, the strong Crown case and the likelihood of a significant custodial penalty being imposed if the applicant is convicted.

34. The maximum penalties indicate the seriousness of the offences. The maximum penalty for the offences under the Weapons of Mass Destruction (Prevention of Proliferation) Act is 8 years’ imprisonment. The maximum penalty for the offences under the remaining counts is 10 years’ imprisonment. The underlying facts as alleged involve breach of international sanctions against the DPRK and include, in some cases, providing the ingredients for weapons of mass destruction. None of the transactions brokered by the applicant which is the subject of the charges was completed. However, there is evidence which, if accepted, would prove that the applicant had brokered successful transactions for the sale of anthracite and pig iron in April and May 2008 (before the imposition of sanctions) for which he was paid a total of US$1.3 million.

33. The Crown contended that its case was strong because it was based on intercepted communications (by telephone, email and online messaging) between the applicant and others in which he uses rudimentary, readily decoded euphemisms to disguise the commodities which were the subject of the negotiations. I am prepared to accept that the Crown case on at least some of the charges is strong.

34. I also accept that there is a real prospect of a custodial sentence being imposed if the applicant were convicted of some or all of the charges and that such a sentence could well exceed the period on remand (assuming a degree of accumulation).

35. The applicant has offered two sureties: one in the sum of $60,000 (from Prabakaran Naganathan) and the other in the sum of $10,000 (from Samuel Kwon). Although Mr Naganathan deposed that he had $40,000 in cash and would need to borrow a further $20,000 from a friend, I am satisfied, on the basis of further documentary evidence that was tendered at the bail application, that Mr Naganathan has the funds available from two Westpac accounts in his name to provide surety in the amount of $60,000. Mr Naganathan, who describes the applicant as “a friend”, has also proposed that the applicant can live with him in his unit at Carramar and that he will support him, financially and socially. Mr Kwon knew the applicant before his arrest as they used to attend the same church over a period of about a decade. I gather from Mr Kwon’s evidence that he has become closer to the applicant since his incarceration.

36. Mr Jiang said that it was fanciful to suppose that the applicant, who was at best a lowly commercial agent, would be sufficiently important for foreign state actors, such as Russia, China or North Korea, to provide him with false papers to leave Australia. He referred to the travel bans imposed by reason of the COVID-19 pandemic on persons leaving Australia. Further, Mr Jiang submitted that, before his arrest, the applicant had a very modest lifestyle and that he would not have the financial capacity to leave the jurisdiction. Mr Jiang relied on the history which the applicant gave following his arrest for the purposes of a reception screening assessment by Justice Health:

“Korean origin man – lost his business 7 years ago – has been investigated by federal police – feels it is unjust – but unsure what he can do about charges – has lost all his property – living in a rented unit and cleaning – denies guilt – has wife – who is upset about all this – living separately – and son who is married with young children – hopes both will be supportive – but son also being investigated – and other friends also – feels he will cope.”

39. Madam Crown pointed to the evidence referred to in the Crown’s statement of facts that the applicant had an account with HBSC in Hong Kong in 2017 in support of her submission that the applicant would flee the jurisdiction. She accepted that there was no evidence of the present or past balance in that account.

40. The Crown submitted that although there are travel bans in place imposed as a consequence of the COVID-19 pandemic which affect Australian citizens, there is an automatic exemption for travel out of Australia for individuals who present themselves as “ordinarily resident in a country other than Australia”. The term “ordinary resident” is defined in the present rules which govern departure from Australia as follows:

“You are considered ordinarily resident in a country other than Australia if international movement records show that you’ve spent more time outside Australia than inside for the last 12 to 24 months. You do not need to carry a paper record of your movements with you. If required, Australian Border Force officers at airports can check your movement records in their systems.”

41. The Crown’s concern, as expressed in the statement of Gavyn Tomkinson, AFP police officer, is that foreign governments will be able to provide the applicant with false identification documents, including a passport, which will enable him to circumvent the restrictions on travel outside Australia.

The applicant’s background, circumstances and community ties

42. On 8 May 1987 the applicant arrived in Australia from the Republic of Korea on a visitor’s visa. He became a permanent resident in 1991 and an Australian citizen on 7 November 2001. In the thirty years between May 1987 and December 2017 the applicant has travelled on about 50 return flights from Australia. He has had nine trips to the DPRK between 3 November 2007 and October 2011. He has also travelled extensively within the DPRK, as revealed by stamps in his passport. It is alleged by the Australian Federal Police (AFP) that such internal travel is not easily achieved without the co-operation of the government of the DPRK.

43. The applicant is married and has a son who are both Australian citizens and live in Sydney. Before his arrest in December 2017, the applicant lived alone in a unit which he rented in Eastwood. He received Centrelink benefits until November 2017 and thereafter worked as a cleaner at Sutherland Hospital. He was a director of a number of companies registered in Australia which the Crown alleges were used as part of his brokering service.

44. Since his arrest, only one family member has visited the applicant in custody. Although there was no evidence to this effect, Mr Jiang submitted that it was understandable that his family had not visited him since they, too, had been interviewed by police and would be reluctant to implicate themselves in any illegality associated with the applicant by visiting him in gaol. Mr Jiang directed my attention to paragraphs 511-513 of the Crown’s statement of facts which allege that the AFP conducted recorded interviews with the applicant’s estranged wife, his daughter-in-law and his son.

45. According to the AFP, the applicant has many supporters who describe him as a “socialist political prisoner”. These supporters do not regard his conduct, even if proved, as being criminal. These supporters have visited the applicant in custody. The Crown has downloaded from the internet an article published on the “Trotskyist Platform” which said:

“If Choi turns out to be ‘guilty’ as charged that means that he sacrificed his freedom to help the people of North Korea bypass these killer sanctions. That would make him a great humanitarian. A humanitarian who should be freed from prison immediately. And if he is found not guilty, he should never have been imprisoned in the first place.”

46. It is reasonable to infer that at least some of the supporters who attended the bail application did not know the applicant before he was arrested and taken into custody.

47. The applicant has various health concerns, including Type-2 diabetes for which he takes insulin.

Whether there is a prospect that the applicant will be represented at the trial

48. I was informed in the course of the bail hearing that the applicant had made a further application for legal aid which was submitted to the Legal Aid Commission at 6.37am on 10 November 2020 (the morning of the hearing of the application). Mr Doumit, of the Legal Aid Commission, who attended at my request, informed me that the Commission was minded to accede to the application because of the seriousness of the charges, the imminence of the trial and the benefit to this Court of an accused being represented at trial. Mr Doumit told me that legal aid would be granted and that the Legal Aid Commission would use its best endeavours to find counsel and solicitors to represent the applicant at the trial, with a view to the trial commencing on its allocated date of 1 February 2021. Mr Doumit was relatively sanguine about the prospect of this occurring. He confirmed that it would obviously be significantly easier for the applicant’s putative legal representatives to confer with him if he were at liberty than if he were in custody.

49. The Crown sought to have the bail application adjourned in order that the question of the grant of legal aid could be resolved before the bail application is determined. While I do not doubt what Mr Doumit has told me, the applicant has dismissed his legal representatives on more than one occasion. I can have no confidence that he would not do so again. In these circumstances, an adjournment of the bail application would inevitably lead to loss of valuable time which could be used by the applicant to prepare his case for trial using means at his disposal such as Google translate and the time and efforts of friends and associates.

50. Accordingly, I decline to accede to the Crown’s application for an adjournment and propose to consider the bail application on the basis that, although there is some prospect that the applicant will be legally represented at his trial, there is still a real chance that he will represent himself.

The applicant’s alleged need to be at liberty to prepare his case

51. Since the applicant’s grant of legal aid has been withdrawn he has no access to a qualified interpreter while he is in custody. The Crown brief, which fills 23 volumes, contains document in English, Russian, Korean and Chinese. The applicant is not fluent in English and requires the services of an interpreter for oral material and a translator for written material. The brief of evidence includes statements of experts who opine on matters which include the weapons program and capabilities of the DPRK. It also includes transcripts of intercepted telephone calls which have been translated by the AFP from Korean to English and have been transcribed in English. A substantial quantity of the material in the brief comprises communications to which the applicant was a party. The Crown submitted that it was reasonable to infer that he would be able to understand at least these conversations.

52. While the applicant is in custody, he does not have access to a Korean-English interpreter or a Korean-English dictionary. A laptop which contained the brief of evidence was provided to him in late-2019. The laptop is in his cell and he has access to it at all times. However because it is not connected to the internet, the applicant cannot access services such as Google Translate. A portion of the brief of evidence was made available to Mr Kwon. However, Mr Kwon confirmed in oral evidence that he has only seen about 100 pages of the brief of evidence which runs to some 20,000 pages. Further, Mr Kwon admitted that he is not fluent in Korean and that his Korean language ability is relatively basic and that of primary school level. Although he has reasonable conversational Korean, he cannot read proficiently in Korean and would not have the capacity to perform the role of an interpreter for the applicant for the purposes of preparing his case for trial. Indeed, Mr Kwon gave evidence that Mr Choi gave his lawyers instructions for the bail application by writing his instructions in English for them, without Mr Kwon’s assistance.

53. Mr Jiang submitted that, although he was unable to identify persons who were bilingual in Korean and English who would be able to help the applicant to translate the brief of evidence, the range of person who could help him would be much greater if he were at liberty and that he would be able to access the internet if he were not in custody.

54. The applicant is unable to verify the accuracy of the AFP translations of the material as he does not have access to the means by which to translate that material for himself. While he is in custody, he does not have resources which would enable him to understand technical parts of the brief.

55. Ihab Jamal, who is the applicant’s solicitor for the bail application, was only able to consult his client for the first time on 30 September 2020.

56. Mr Jiang informed me that it was the applicant’s intention, if released, to seek pro bono legal advice from community legal centres to assist him in the trial.

57. I note that, in the course of the bail application, the Crown indicated that it would provide a Korean-English/English-Korean dictionary for the applicant to use in gaol. The Crown also indicated that although the Crown brief was 22 folders, the tender bundle was only 3 folders. Although I accept that the tender bundle is very much more confined than the Crown brief, if the applicant is legally represented, his representatives would need to review the whole brief and obtain instructions from the applicant as to its contents. The Crown has identified the documents within the tender bundle which are presently, as a matter of urgency, being translated into Korean. Madam Crown confirmed that it was only very recently that this process began to be undertaken. I apprehend that the delay was occasioned as the Crown did not appreciate (having made no relevant inquiries) the limits of the interpreting and translation services which had been provided by legal aid and that the termination of legal aid led to the removal of such services as had previously been provided. The Crown assured me that priority was being given to the translation of key documents in the Crown tender bundle, including the expert reports sought to be relied on by the Crown. It was expected that these reports would be translated within about 4 weeks.

58. The Crown informed me that the CDPP had written to the applicant in gaol on a number of occasions but had received no response. No Korean interpreter had been sent to the gaol to deliver the letters to the applicant (which had, in any event, been translated into Korean). Accordingly, it is not known whether he ever received the letters and what his response, if any, was to the correspondence.

Further matters

59. Since the applicant was last examined by Dr Allnutt to determine his fitness for trial, he has been examined by Justice Health. The clinical notes of Justice Health recorded that when he presented on 28 August 2020, the applicant’s symptoms were as follows:

“Unstable type 2 diabetes – monitor for confusion, unable to talk in sentences, excessive seating, unconsciousness, difficulty to rouse.”

60. The clinical notes of Justice Health recorded that when he presented on 7 September 2020, he was unable to tell the clinician where he lived, where he was born, his age or date of birth. Although he was able to say that he was in a hospital, the applicant was apparently unable to identify the year, the month or the day. The diagnosis was recorded as “amnesia/memory deficit”.

61. The Crown has booked a further appointment with Dr Allnutt for 1 December 2020 to ascertain the applicant’s fitness for trial. The Crown has some concern, as a result of statements made by the applicant, that the applicant will not co-operate with such an appointment. As there is a prospect that the applicant will soon be legally represented, it is preferable to defer the consideration of whether an order requiring the applicant to co-operate with such an examination can, or ought, be made. I have listed the matter before me for directions on 19 November 2020 at which time this matter can be revisited.

Conclusion

62. For the trial of the applicant to be fair, he must be able to understand the proceedings and the nature of the evidence adduced against him Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62. As a practical matter, this means in the present case that the applicant must be given the opportunity to have the brief translated into Korean so that he can understand it and to have an interpreter at the trial.

63. Because he has been designated a National Security Inmate, there are significant restrictions on those who can visit them. In 2019 there was a substantial delay in obtaining a suitable interpreter because of the reluctance of professional interpreters to submit themselves to the extensive vetting processes required by the relevant regulations. The applicant would appear to lack the means to pay for a professional interpreter. Even while he had legal aid, the grant of legal aid did not extend to translating the Crown brief.

64. Although the applicant has had the brief of evidence on a laptop in his cell for almost a year now, it is largely incomprehensible to him because it has not been translated into his native Korean. Unless this situation changes, he will be unable to obtain a fair trial. Accordingly, the applicant’s right to a fair trial is closely related to the present application. The relationship between the two concepts became an issue in the hearings before Harrison J in 2019 when the applicant’s application for a permanent stay was refused, as was his bail application, but on the basis that the difficulties with obtaining an interpreter could be overcome.

65. Further, there are significant factors in favour of a grant of bail. The principal of these is the need for the applicant to be at liberty to prepare for his trial. Of the almost three years the applicant has already spent on remand, little time has been spent in preparation. Although the applicant has had the Crown brief for almost a year, his facility with English is insufficient to review it adequately and such interpreting services as were provided to him from the end of 2019 until May 2020 when the grant of legal aid was terminated did not extend to translating the brief. Unless the brief can be made comprehensible to the applicant, he cannot have a fair trial. In my view, the prospects of his being able to prepare for his trial are remote if he is kept in custody. If he obtains legal representation, his access to his lawyers will be substantially easier if he is at liberty. Even if he does not have access to a qualified interpreter to check the translations performed by the Crown of documents within the brief and the tender bundle, he will be able, while at liberty, to do his own translations using Google translate and other tools available on the internet.

66. The length of time which the applicant has spent awaiting his trial is a further factor in favour of a grant of bail. His trial has already been adjourned twice. It is also of significance that, even if he is convicted, a custodial penalty in excess of the period already spent on remand is not inevitable.

67. The Crown was adamant that the applicant had no friends, no close family ties and only a group of supporters who had come to know him since his arrest when he became for them a political prisoner. However, it is nonetheless significant that the applicant came to Australia 33 years ago and has been a citizen for the past nine years. His pattern of travel is consistent with his work as a commercial agent. While he has had little contact with his family since his arrest, I accept Mr Jiang’s supposition that this may be because his family is reluctant to implicate themselves by association with him.

68. In many cases, the question whether to grant bail depends on the relative risk to the administration of justice if the applicant were to be released on bail. By contrast, the present case turns on the risk to the administration of justice if the applicant were to remain in custody.

69. The primary purpose of bail is to safeguard the administration of justice. Usually this involves ensuring that the accused appears at the trial and does not interfere with witnesses or evidence in the interim. However, in the present case, there is another important purpose of bail: to give the applicant the opportunity to prepare his case for trial. If bail were to be refused, I would have grave concerns about the fairness of the applicant’s ultimate trial since the difficulties of preparing for such a trial in custody would appear, in the present circumstances, to be so onerous as to be practically insurmountable.

70. I accept that there is a risk that, if bail is granted, the applicant will fail to appear at his trial. However, I consider that this risk can be adequately ameliorated by bail conditions. I note that the Crown has sought the enforcement condition (16) below and that such a condition may only be imposed if requested by the prosecutor: s 30(3) of the Bail Act.

Orders

Bail is granted on the following conditions:

1. Chan Han CHOI (the applicant) is to be of good behaviour.

2. Subject to condition (3), the applicant must reside at unit 11/190 Sandal Crescent, Carramar NSW 2163.

3. If the applicant proposes to change his address he is to notify the Australian Federal Police (AFP) of any change of address at least 48 hours prior to the change.

4. The applicant must report to Bass Hill Police Station twice daily, between the hours of 8.00am and 12.00pm and again between 6.00pm and 10.00pm, except where not required to do so by the police due to measures related to the COVID-19 pandemic.

5. Subject to (6) below, the applicant must not be absent from the above address at any time except for the following purposes:

1. obtaining essential or urgent medical care;

2. complying with his reporting obligations in condition (4);

3. seeking or obtaining legal advice or meeting with his legal representatives; or

4. attending court for the purposes of these proceedings.

6. The applicant must not leave the premises at any time between the hours of 8pm and 6am except for the purposes in condition (5)(a) and 5(b).

7. The applicant is not to have contact, whether directly or indirectly (other than through a legal practitioner), with Raymond CHAO.

8. Upon release from the Correctional Centre, Long Bay Hospital, the applicant is to be placed in the custody of Prabakaran Balanathan Naganathan and taken directly to unit 11/190 Sandal Crescent, Carramar NSW 2163.

9. Within 24 hours of his release the applicant must provide to the officer in charge the mobile number of the device he intends to use.

10. The device nominated in accordance with condition (9) is not to contain encrypted applications.

11. The applicant must not use any other telephone number or any other mobile device (apart from the laptop on which his brief of evidence is stored), whether public or private, except in the case of an emergency or with prior written authorisation from the officer in charge.

12. Within 48 hours of his release the applicant must provide the officer in charge with an email address for service of material related to his proceedings.

13. Unless the applicant is legally represented by a practitioner whose identity and contact details have been previously disclosed to the Commonwealth Director of Public Prosecutions (CDPP), the applicant must respond to emails sent by the CDPP to the email address nominated in compliance with condition (12) with respect to matters pertaining to his trial proceedings.

14. The applicant must not use any encrypted applications on any telecommunications or computer device.

15. The applicant must, on request, disclose to the officer in charge any caller or phone number appearing on his phone accounts.

16. The applicant is to present himself at the front door of unit 11/190 Sandal Crescent, Carramar NSW 2163 at the direction of any police officer at any time to ensure compliance with conditions (5) and (6) above. Such a direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy.

17. The applicant must not access the internet, except for the purpose of searching for employment, managing welfare payments, translation of documents for his trial or research and preparation for his trial.

18. The applicant must not go within 2km of any point of international departure in Australia.

19. The applicant’s passport must remain in the possession of the Australian Federal Police and he is not to apply for a new passport or travel documents.

20. The applicant must not contact or have involvement with entities or representatives of the Democratic People's Republic of Korea.

21. The applicant is to appear at this Court for his trial and for pre-trial directions hearings and applications as required.

22. An acceptable person, namely Samuel Kwon, is to deposit an amount of $10,000 as security and enter into an agreement to forfeit that amount if the applicant fails to comply with his bail undertaking.

23. An acceptable person, namely Prabakaran Balanathan Naganathan, is to deposit an amount of $60,000 as security and enter into an agreement to forfeit that amount if the applicant fails to comply with his bail undertaking.

24. Conditions (22) and (23) are pre-release requirements for the purposes of s 29 of the Bail Act 2013 (NSW) and, as such, they must be complied with before the applicant is released on bail.

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Amendments

11 February 2021 -

Publication restriction removed – judgment published

Decision last updated: 11 February 2021