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

1. 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.

2. The trial has since commenced and the jury has been discharged.

3. 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.

4. 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.

5. 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.

6. 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.

7. I am to take into account, pursuant to s 18(1)(i1) of the Bail Act the likelihood of a custodial sentence being imposed, given that Mr Choi has been convicted of the offence, but not yet sentenced. As the sentencing judge I, obviously, have no firm views and would not have until I have heard from the parties on sentence. All that can be said at present is that whilst it would appear to be likely that a custodial sentence would be imposed on Mr Choi for the totality of the offending conduct, the question whether any non-parole period would exceed the period already spent on remand which is almost three years, from December 2017 to November 2020, is still very much an open question which will depend on the evidence and submissions at the sentencing hearing.

8. The factor in s 18(1)(l) of the Bail Act, the need for Mr Choi's appearance in court or to obtain legal advice, is a significant matter, as is apparent from my reasons for granting bail in November 2020: R v Choi [2020] NSWSC 1586. The reason I granted bail was that I was concerned that while Mr Choi was in custody his classification made it nigh impossible for there to be proper communication between him and his legal representatives. This was not simply because of the restrictions on legal representatives gaining access to a national security inmate, for such was his classification. It was also made difficult for trained interpreters to visit the gaol because of the vetting process to which they were subjected before they could gain access to Mr Choi.

9. In the next week the Crown will serve a draft statement of agreed facts. In order to decide whether Mr Choi agrees with those facts or wishes to propose alternative facts it will be necessary for him to have access to Mr Davis, his current instructing solicitor, as well as to a Korean interpreter so that he can understand the ramifications and nuances in those draft facts. Furthermore, it will be necessary for Mr Davis to garner evidence from Mr Choi to represent him adequately and properly, as I know Mr Davis will do at the sentence hearing. I am not satisfied that can be done while Mr Choi is in custody.

10. I accept that there is a risk that Mr Choi will fail to appear at the proceedings on sentence. However, I note that in the period since the grant of bail in November 2020 and the variation on 18 December 2020 no indication has been given to me that there has been a breach of bail. Aside from being, I think, one minute late for court yesterday Mr Choi has apparently complied with his bail conditions. These conditions are onerous and involve regular reporting (six times a week), a residence requirement and the prohibition of him leaving premises apart from for certain identifiable purposes.

11. The risk identified by the Crown is the subject of evidence by Federal Agent Gavyn Tomkinson in a statement made on 3 November 2020. A concern raised by the Crown, through Mr Tomkinson, is that, due to the nature of the offences committed by Mr Choi it would be possible for the Government of North Korea or potentially the Governments of China or Russia to provide him with a false passport. In that event it would be open to him to leave Australia. Whilst it is difficult for Australians to leave Australia at the moment, the difficulties are not so great for those who have passports of other countries in that they are generally permitted to leave Australia. Whilst I accept on the basis of the statement of Federal Agent Tomkinson that it is a risk, it has not yet ensued.

12. I consider that if it were a real risk then there may have been some attempt to spirit Mr Choi out of the jurisdiction before now. The impression that I have is that Mr Choi accepts the jurisdiction of this Court and is prepared to attend court to be sentenced.

13. The bail conditions which are current would appear to me to be sufficient to ameliorate the risk that he will fail to appear at the sentence hearing and also serve the very important public purpose of enabling Mr Choi to have fairly ready access to legal advice and to interpreting services. This is of particular importance because I note that last year one of the reasons given for his terminating instructions with his then lawyers was that they had failed to visit him in gaol. The explanation given by the legal advisors was that they saw little point in visiting him in gaol, unless he had access to an interpreter. It is regrettable that misunderstandings of that nature occur. But I trust that while Mr Choi is at liberty such misunderstandings can be either eradicated or kept to a minimum.

Order

14. Accordingly, the Crown's detention application is refused.

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Decision last updated: 11 February 2021