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

1. 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.

2. 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

3. 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 client. This is Mr Choi’s privilege. He is entitled to speak privately with his lawyers without fear that the conversation is being recorded or intercepted by agents of the state or other persons.

The purpose of this letter is to request assurances about the involvement of your office, if any, in the surveillance and monitoring of Mr Choi. We seek assurances –

(1) that your office has not undertaken, participated in or colluded in any recording or interception of communications between Mr Choi and his legal representatives; and

(2) that your office will not undertake, participate in or collude in any such recording of interception.

We seek your response within seven working days hereof. Please be advised that if we do not receive a response, our counsel will bring this to the Court’s attention as a matter bearing upon the fairness and viability of the proposed trial.

Yours faithfully,

Just Defence Criminal and Family Lawyers.”

4. Mr Choi’s lawyers wrote letters in identical or cognate terms to several other recipients including the Commonwealth Attorney-General, the Minister for Home Affairs, the Commissioner of the Australian Federal Police, the Director-General of ASIO and the New South Wales Commissioner for Corrective Services. The following replies were received.

5. The Commonwealth Director of Public Prosecutions responded by letter dated 4 November 2019 in the following terms:

“I refer to your letter dated 31 October 2019 in relation to the above matter.

The functions and powers of the Commonwealth Director of Public Prosecutions (CDPP) are set out in the Director of Public Prosecutions Act 1983 (Cth). The CDPP has no investigative function and no power to gather evidence. These are functions and powers assigned to other agencies, such as police.

I can therefore assure you that staff of the CDPP have not recorded or intercepted any communications that may have taken place between you and your client.”

6. The Commissioner for Corrective Services responded by letter dated 7 November 2019 in these terms:

“I refer to your correspondence of 31 October 2019 concerning your client Mr Chan Han Choi (MIN 599388). I note you have also written to the Secretary, Department of Communities and Justice. The Secretary has asked me to respond on his behalf.

You have raised concerns regarding the surveillance and monitoring of your client Chan Han Choi. In particular, you request assurances:

(1) that Corrective Services NSW (CSNSW) has not undertaken, participated in or colluded in any recording or interception of communications between Mr Choi and his legal representatives; and

(2) that CSNSW will not undertake, participate in or collude in any such recording or interception.

In accordance with the Custodial Operations Policy and Procedures, inmate legal visits and phone calls are not to be recorded or monitored. The exception to this is where phone calls with ‘national security interest’ (NSI) inmates, such as Mr Choi, are monitored by CSNSW officers to ensure that they are in English and are with approved contacts.

In order to monitor calls without breaching an inmate’s privilege or confidentiality, it is the practice of CSNSW that officers periodically ‘drop in’ to the line, listen for only long enough to check that English is being spoken and that the call is with the approved recipient, and then disconnect. No records are made of anything heard during a ‘drop in’ unless the call was not in English or not with an approved person.

Further to this, correspondence, including faxes and emails from a legal practitioner to a NSI inmate must be delivered to the inmate without opening, inspecting or reading its contents. However, the correspondence must comply with the requirements set out in clause 115(4) of the Crimes (Administration of Sentences) Regulation 2014.

I confirm that CSNSW has maintained compliance with the policies outlined above, and will continue to do so while Mr Choi is in custody.”

7. A representative of the Commonwealth Attorney-General’s Department wrote on 12 November 2019 relevantly as follows:

“The department is not in any way involved in activities related to recording or interception of communications of any members of the public. These activities are subject to strict legislative requirements and would require the exercise of powers to which the department does not have lawful access.

It follows that the department has not been involved in any such activities relating to your client, Mr Choi, or his legal representatives.”

8. An acting superintendent of the Australian Federal Police responded on 18 November 2019 as follows:

“I refer to your letter dated 31 October 2019 in relation to the above matter.

The Australian Federal Police (AFP) does not comment on operational matters before the court.

The AFP is well aware of, and respects, the privileges that apply in relation to communications between legal practitioners and their clients.”

9. Despite these assurances, Mr Choi perceives that the Crown alleges against him that he is an economic agent of North Korea, a foreign power with whom Australia shares no allies. The Crown is concerned that Mr Choi holds himself out as a senior representative of North Korea acting under the direct orders of Kim Jong-un. The Crown considers that Mr Choi has provided services for the sale of ballistic missile components, suspecting that they might assist a programme for the production of weapons of mass destruction.

10. Mr Choi contends that it is reasonable in these circumstances for him to suspect that his activities and communications with other people, including his lawyers, are the subject of strategic monitoring and observation, not only for the purposes of criminal investigation but for what he describes as “unknown geopolitical purposes”. He notes that his case has been the subject of considerable national and international media attention and strident comment by parliamentarians, including former Prime Minister Malcolm Turnbull, whose on-line interview with CNBC on 17 December 2017 is reported in the following terms:

“Prime Minister Malcolm Turnbull said he had been briefed by AFP Commissioner Andrew Colvin on the ‘very, very serious matter’ and warned anyone thinking of assisting North Korea that ‘the AFP will find you’.

‘North Korea is a dangerous, reckless, criminal regime threatening the peace of the region,’ Turnbull said. ‘It supports itself by breaching U.N. sanctions, not simply by selling commodities like coal and other goods, but also by selling weapons, by selling drugs, by engaging in cybercrime.’

He added: ‘It is vitally important that all nations work relentlessly to enforce those sanctions because the more economic pressure that can be brought on North Korea, the sooner that regime will be brought to its senses.’”

11. Mr Choi contends that Mr Severin’s letter, by way of example, does nothing to allay his concerns that his privileged communications with his lawyers are being monitored but that it only serves to confirm them. Mr Choi maintains that a stay of his trial should be granted and that there should be no trial unless and until certain conditions are met, namely,

(1)    that the relevant state agencies provide him with written assurances that they will not undertake, participate in or collude in any recording or interception of communications between him and his legal representatives, and

(2)    that state agencies which have undertaken, participated in or colluded in any such recording or interception disclose to him that this has occurred, and the substance of any records that have been made.

12. The Crown contends that Mr Choi’s submissions mis-state the effect of Mr Severin’s letter. Mr Choi’s phone calls have neither been intercepted nor recorded. The so-called “drop-in” monitoring that occurs is undertaken for the sole purpose of confirming that the telephone conversation is being conducted in English and with an approved contact: see cl 119 of the Crimes (Administration of Sentences) Regulation 2014. The Crown submitted that the Commissioner’s power to do so is a necessary corollary to the power to terminate a call under cl 119(4). Mr Choi has not applied for his calls to be conducted in a language other than English pursuant to cl 119(6).

13. I have been informed by the Crown that the lawfulness of the “drop-in” practice is currently the subject of a challenge in the matter of Hamzy v Commissioner of Corrective Services upon which Bellew J is reserved. However, it is unnecessary for present purposes for me to determine the legality of that practice. That is because the evidence upon which Mr Choi relies does not establish that in his case the Commissioner has been monitoring his calls or recording his conversations in any direct or indirect manner that either has the potential to compromise his lawyer client privilege or otherwise interfere with the administration of justice.

14. In expressing that opinion, I should not be taken to be unmindful of the fact that Mr Choi has authentic and genuine concerns about whether or not the confidentiality he wishes to maintain with respect to his preparation to defend the current charges may have been compromised. However, there is a significant and important difference between Mr Choi’s expressed concerns on the one hand and his ability to establish that they are well founded on the other hand. Mr Choi’s suspicions are insufficient to support his application for a stay of the proceedings. By parity of reasoning, I do not consider that Mr Choi is yet in a position to demand or to insist upon the giving of the undertakings or assurances that he seeks. On one view, Mr Severin’s letter, confirming his compliance with the stated policies, and his acknowledgment of the sanctity of Mr Choi’s lawyer client privilege and the confidentiality of Mr Choi’s communications, ought to be sufficient reassurance to Mr Choi having regard to the present state of the evidence before me.

Ground 2

15. The burden of Mr Choi’s complaint under this ground is that he has been unable to organise sessions with interpreters in order properly to instruct his lawyers. There is a degree of overlap with ground 1 in the sense that Mr Choi has so far been restricted to conversations over the phone in English rather than in Korean. As I indicated in the course of argument, I am not certain that Mr Choi’s complaint about his difficulties in securing access to suitable interpreters is one that is properly directed at the Crown. It might be otherwise if Mr Choi contended that his attempts to speak to his lawyers with the aid of an interpreter were being frustrated or interfered with by the prosecution.

Comment

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.

17. I note in passing that it will probably be necessary for Mr Choi’s lawyers to confer with him in the facility at which he is housed from time to time. Having regard to the complexity of the case against him, and the fact that his lawyers are in Sydney, I would also expect that Mr Choi will continue to be held in a Sydney metropolitan gaol.

Orders

18. In my opinion, Mr Choi’s application to stay the proceedings should be dismissed.

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Amendments

15 December 2021 - Publication restriction removed.

Decision last updated: 15 December 2021