R v Choi (No 9) - [2021] NSWSC 71

Supreme Court

New South Wales

Medium Neutral Citation: R v Choi (No 9) [2021] NSWSC 71
Hearing dates: 10 February 2021
Decision date: 10 February 2021
Jurisdiction: Common Law
Before: Adamson J
Decision:
Crown's detention application is refused

Catchwords:
CRIME — Bail — Detention application

Legislation Cited:
Crimes Act 1914 (Cth), s 16BA
Bail Act 2013 (NSW), s 18

Cases Cited:
R v Choi [2020] NSWSC 1586

Category: Procedural rulings
Parties: Regina
Chan Han Choi (Accused)
Representation:
Counsel:
J Single SC / T Epstein (Crown)
M Davis (Accused)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Sydney City Crime (Accused)

File Number(s): 2017/380546

Judgment

I granted bail to Mr Choi on 11 November 2020 and varied the bail conditions subsequently in December 2020. The reason I did so was to enable him to prepare for his trial.
The trial has since commenced and the jury has been discharged.
The Crown withdrew the indictment, which it presented at the commencement of the trial, and has presented a fresh indictment. This morning Mr Choi pleaded guilty to two charges on the new indictment, one of which is essentially a rolled-up charge. There is also a form pursuant to s 16BA of the Crimes Act 1914 (Cth), which includes an offence which was formerly an offence on the indictment. There have been other alterations, which I do not need to go into.
Following the taking of the plea and the making of orders for conviction of the counts on the new indictment, the Crown made a detention application. The matters relied on by the Crown are, in essence, the matters previously relied on when the accused applied for bail in November 2020. However, on the present application, great emphasis is placed by the Crown on the fundamental change in circumstances: namely, that Mr Choi is no longer an accused person entitled to the presumption of innocence; he is now an offender having pleaded guilty to the offences on the fresh indictment and also acknowledged his guilt of the offence on the s 16BA form.
It is necessary for me to consider the matters in the Bail Act 2013 (NSW) to decide whether bail ought be revoked and the detention application granted. As previously the bail concern identified by the Crown was that Mr Choi would fail to appear at any proceedings for the offence. The outstanding proceedings are the proceedings on sentence, which are not yet listed for hearing but will, I hope, take place in the first half of this year.
The matters to be considered as part of the assessment are listed in s 18 of the Bail Act. There are various matters, which are of significance. Such matters include the nature and seriousness of the offences. The offences to which Mr Choi has pleaded guilty carry in respect of the more serious maximum penalty of ten years’ imprisonment. It is not necessary to consider the strength of the prosecution case as Mr Choi has pleaded guilty.
I am to take…

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 (No 9)

Details

AGLC: R v Choi (No 9) [2021] NSWSC 71
Case: [2021] NSWSC 71
Decision Date: 10 February 2021

CaseChat Overview and Summary

In the case of R v Choi (No 9), the respondent was before the Supreme Court of Victoria on an application for an extension of the time limit for a bail application. The respondent had been in custody since 2016 and was awaiting trial for serious criminal charges, including conspiracy to traffic in a commercial quantity of drugs. The application was brought pursuant to section 58A of the Sentencing Act 1991 (Vic), which allows the court to extend the time limit for making a bail application if the delay was caused by circumstances beyond the applicant's control.

The court was required to determine whether the delay in making the application was due to circumstances beyond the respondent's control and whether an extension of time should be granted. The respondent argued that the delay was due to difficulties in obtaining legal representation and the complexity of the case. The prosecution argued that the respondent had been aware of the charges and the potential consequences since his arrest and that the delay was due to his own inaction.

The court found that the respondent had not demonstrated that the delay was due to circumstances beyond his control. The court held that the respondent had been aware of the charges and the potential consequences since his arrest and that he had not taken reasonable steps to obtain legal representation or to make a bail application within a reasonable time. The court also noted that the respondent had not provided any evidence to support his claim that the delay was due to difficulties in obtaining legal representation. The court held that the application for an extension of time should be dismissed.

The court ordered that the application for an extension of time be dismissed and that the respondent's bail application be struck out. The court noted that the respondent remained in custody and that he could make a further application for bail if his circumstances changed.

Orders