R v He & Bun - [2001] VSCA 58

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 10 of 2000

THE QUEEN
v.
PEN HE
THE QUEEN	No. 11 of 2000
v.
SAMBO BUN

---

JUDGES:	PHILLIPS, C.J., BATT and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 April 2001
DATE OF JUDGMENT:	10 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 58

---

CRIMINAL LAW - Accomplice – How and by whom determined whether witness an accomplice – Warning not sought – Duty in circumstances to give – Convictions quashed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J. Champion	Office of the Commonwealth Director of Public Prosecutions
For the Applicant He	Mr. P.G. Priest Q.C. with Mr. M.J. Croucher	Christopher Traill and Associates
For the Applicant Bun	Mr. P.F. Tehan Q.C. with Ms S. Cure	Cole and Magazis

PHILLIPS, C.J.
BATT, J.A.:

The applicants, (hereafter referred to as He and Bun) and who are aged 41 and 40 respectively, were convicted by a jury in the County Court at Melbourne on 21 December 1999 on several counts. He was convicted on counts 3 and 4 on the indictment and Bun was convicted on counts 1 and 2. A third accused person, Kho Iv, was acquitted on counts 5 and 6. In all three cases the first count was one of possession of prohibited imports, namely heroin of not less than a trafficable quantity, and the second one of attempted possession of the same. These pairs of offences were said to have been committed at Melbourne respectively on 11 June 1997 and between 8 and 11 June 1997. Neither applicant had prior convictions and, after hearing pleas for leniency, the learned judge, on 24 January 2000, sentenced each to be imprisoned for five years (commencing on that day) on the count of possession and seven years four months (commencing on that day) on the count of attempted possession making for a total effective sentence of seven years and four months. His Honour fixed a non-parole period of six years and seven months.

The applicants later lodged notices of application for leave to appeal against conviction and sentence and, after leave to substitute or add grounds was given by the learned Registrar, the grounds pleaded in relation to conviction came to read as follows in the case of He:

“1.The trial judge erred in failing to give any direction at all to the jury concerning criminal complicity.
2.The trial judge erred in failing to direct the jury sufficiently or at all as to the evidence which was admissible, and that which was inadmissible, against the applicant.
3.The trial judge failed to put the defence case to the jury sufficiently or at all.
4.The trial judge failed to warn the jury sufficiently or at all as to the dangers in acting upon the evidence of Thath Pech.
5.The verdicts of the jury are unsafe and unsatisfactory; and in particular, a reasonable jury, properly instructed, ought to have entertained a reasonable doubt as to the applicant’s guilt.”

The grounds relating to…

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 He & Bun

Details

AGLC: R v He and Bun [2001] VSCA 58
Case: [2001] VSCA 58
Decision Date: 10 May 2001

CaseChat Overview and Summary

In the matter of R v He & Bun, the High Court of Australia was tasked with addressing the legality of convictions in light of the failure to warn the jury that a particular witness may be considered an accomplice. The respondents, He and Bun, were convicted on criminal charges, and the primary issue before the court was whether the trial judge had a duty to warn the jury about the potential status of a witness as an accomplice, especially when no such warning was requested by the respondents' counsel.

The legal issues centred on the obligations of the trial judge in providing a warning to the jury regarding the potential status of a witness as an accomplice. The court had to determine whether the trial judge was required to give such a warning sua sponte, that is, on their own initiative, when no request was made by counsel for either party. The respondents argued that the failure to provide such a warning was a fundamental procedural error that warranted a quashing of their convictions.

The court ruled that where a witness may be considered an accomplice, the trial judge has a duty to warn the jury of this potential status, even in the absence of a request from either party. The court held that such a warning is necessary to ensure the jury is fully informed and can properly assess the credibility and reliability of the witness's evidence. The failure to provide this warning in the respondents' case was deemed a significant procedural defect, leading to the quashing of their convictions. The court emphasised the importance of this duty in maintaining the fairness and integrity of the criminal trial process.

Orders