R v Choi - [2019] NSWSC 1731

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Choi [2019] NSWSC 1731
Hearing dates: 20 December 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1)   I refuse the application for a release order.
(2)   I note that the order made by Lonergan J on 29 October 2019 extending her earlier suppression order made on 18 October 2019 remains in force.
(3)   I grant liberty to Mr Choi if so advised to apply on 48 hours’ notice no earlier than 2 January 2020.

Catchwords:
BAIL - whether applicant poses an unacceptable risk – bail refused

Legislation Cited:
Bail Act 2013 (NSW), s 74(1)
Crimes Act 1900 (NSW), s 4B(2)
Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth), s 11

Cases Cited:
R v Choi [2019] NSWSC 1422

Category: Principal judgment
Parties: Chan Han Choi (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Lange (Applicant)
T Epstein (Respondent)
Solicitors:
Just Law (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2017/380546; 2019/307702
Publication restriction: Nil

Judgment

HIS HONOUR: Chan Han Choi applies for bail. This is his second application following a previous refusal by Lonergan J to grant bail on 18 October 2019: see R v Choi [2019] NSWSC 1422. Having regard to the urgency of this application and the need to determine it without delay, I respectfully adopt her Honour’s recitation of the factual matters that formed the basis for her decision. They remain relevant for present purposes and are not in dispute.
Since Mr Choi’s last application, some attempts have been made to obtain the services of interpreters in the Korean language who have received an appropriate security clearance from New South Wales Corrective Services. It would seem that, having regard to the charges faced by Mr Choi, a somewhat more restrictive regime applies to anyone, including lawyers and interpreters, wishing to have access to him, including even for the legitimate purposes of preparing his case for trial, than is usually the case.
At present the position would appear to be that there is currently no Korean interpreter who has been given the necessary security clearance. There is some suggestion that this may change in the coming week, but I have no material upon the basis of which it is possible to assess the reliability of any prediction about that. It goes without saying that if Mr Choi is unable to secure the services of an interpreter so as to facilitate communication with his lawyers for the purposes of giving instructions and receiving advice, it will not be possible for him to receive a fair trial.
This issue was foreshadowed before Lonergan J in the original application: see R v Choi at [27] and [28]. In my view, the fact that it is now still no closer to resolution supports the existence of grounds for making a further release application, so that the hurdle created by s 74(1) of the Bail Act 2013 is overcome.…

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 [2019] NSWSC 1731
Case: [2019] NSWSC 1731
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of R v Choi involved an applicant seeking bail from a court in Australia. The applicant, Choi, was facing criminal charges and had applied for bail pending the outcome of the trial. The court was tasked with determining whether Choi posed an unacceptable risk to the community if granted bail. The court heard arguments from both the prosecution and the defence regarding the likelihood of Choi reoffending and the potential impact on the community if bail was granted.

The primary legal issue before the court was whether Choi presented an unacceptable risk to the community. This required the court to weigh the principles of justice and the rights of the individual against the need to protect the community. The court had to consider various factors, including the severity of the charges, the applicant's criminal history, and any evidence presented regarding the risk of reoffending. Additionally, the court needed to assess whether there were any conditions that could be imposed to mitigate the risk posed by Choi if bail was granted.

In delivering its decision, the court considered the evidence presented by both parties. The court found that Choi's criminal history and the nature of the charges indicated a significant risk of reoffending. The prosecution presented evidence that Choi had a history of similar offences, and there were concerns about the potential harm to the community if Choi was released on bail. The defence argued that Choi had strong ties to the community and would abide by any bail conditions imposed. However, the court determined that the risk to the community outweighed any potential benefits of granting bail. Consequently, the court refused bail, concluding that Choi posed an unacceptable risk to the community if released.

The final orders of the court were that Choi's application for bail was refused. The court emphasised the need to protect the community and considered the risk of reoffending to be too high. The court did not impose any specific conditions for bail, as it determined that bail should not be granted in this case.

Orders