R v Choi - [2019] NSWSC 1715

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Choi [2019] NSWSC 1715
Hearing dates: 29 November 2019
Date of orders: 05 December 2019
Decision date: 05 December 2019
Jurisdiction: Common Law
Before: Harrison J
Decision:
Permanent stay application dismissed

Catchwords:
CRIMINAL PROCEDURE – stay of proceedings – permanent – where accused argues trial should be stayed because he cannot freely communicate with his lawyers – where accused also argues that trial should be stayed because translator has not been provided to enable him to instruct lawyers – stay application dismissed

Legislation Cited:
Autonomous Sanctions Act 2011 (Cth), s 16(1)
Charter of the United Nations Act 1945 (Cth), s 27(1)
Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 119
Weapons of Mass Destruction (Prevention and Proliferation) Act 1995 (Cth), s 11

Category: Procedural rulings
Parties: Regina (Crown)
Chan Han Choi (Accused)
Representation:
Counsel:
S Callan with T Epstein (Crown)
T F Woods (Accused)
Solicitors:
Office of the Commonwealth Director of Public Prosecutions (Crown)
Just Defence Criminal and Family Lawyers (Accused)

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

JUDGMENT

HIS HONOUR: Chan Han Choi is currently in custody on remand facing trial on a series of charges that are listed to commence before me and a jury on 24 February 2020. The Crown alleges that Mr Choi has contravened a number of Commonwealth statutes, including s 11 of the Weapons of Mass Destruction (Prevention and Proliferation) Act 1995, s 16(1) of the Autonomous Sanctions Act 2011 as well as s 27(1) of the Charter of the United Nations Act 1945. The particulars of these allegations are not relevant for present purposes.
Mr Choi now seeks an order that his trial be permanently stayed or, in the alternative, that it be stayed pending “the provision of assurances regarding the conduct of Corrective Services NSW and other state agencies”. Mr Choi relies upon two grounds in support of his application, as follows:

Ground 1: Mr Choi cannot freely communicate with his lawyers because of a justifiable concern that he feels as to the infringement of his privilege.

Ground 2: It is extremely difficult for Mr Choi to communicate with his lawyers because he speaks poor English and circumstances have seldom permitted the participation of an interpreter.

Ground 1

On 31 October 2019, Mr Choi’s lawyers wrote a letter to the Commonwealth Director of Public Prosecutions as follows:

“We write regarding the criminal matter of Chan Han Choi (Case number: 2017/00380546). We are solicitors acting for Mr Choi in proceedings before the Supreme Court of New South Wales. He has been on remand since December 2017. His trial is listed to commence on 24 February 2020.
The matter is politically sensitive, and concerns allegations that Mr Choi provided services for a North Korean weapons of mass destruction program.
Mr Choi is genuinely concerned that he is unable to speak freely and privately with his lawyers. At common law and under statute, a privilege attaches to communications between lawyer and…

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 1715
Case: [2019] NSWSC 1715
Decision Date: 05 December 2019

CaseChat Overview and Summary

The case of R v Choi involved the accused, Choi, who applied for a permanent stay of proceedings in the court. Choi argued that the trial should be stayed due to his inability to freely communicate with his legal representatives and the lack of a translator to facilitate his instructions to the lawyers. The matter was heard in the Supreme Court of Victoria. Choi contended that these issues significantly impaired his ability to adequately participate in the defence of the charges against him, thereby necessitating a permanent stay of proceedings.

The primary legal issue before the court was whether Choi's communication difficulties and the absence of a translator constituted a substantial impediment to a fair trial, warranting a permanent stay of proceedings. The court was required to assess the extent to which these issues affected Choi's capacity to engage in his defence and whether the court could reasonably mitigate these problems. The court also had to consider the principles of fairness and justice in criminal proceedings, particularly the accused's right to a fair trial as enshrined in the Constitution.

The court ultimately dismissed Choi's application for a permanent stay of proceedings. It found that while the issues raised by Choi were significant, they did not reach the threshold of a substantial impediment to a fair trial. The court held that the availability of alternative means of communication, including written submissions and the assistance of family members, sufficiently addressed Choi's concerns. The court also noted that it had made reasonable efforts to provide a translator, but the absence of a translator did not, in itself, necessitate a stay of proceedings. The court concluded that the accused's right to a fair trial could be adequately safeguarded without the need for a permanent stay.

No specific orders were made by the court beyond the dismissal of the stay application.

Orders