R v Law - [2018] WASC 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   R -v- LAW & ORS [2018] WASC 235
CORAM:   FIANNACA J
HEARD:   30 OCTOBER, 1 & 2 NOVEMBER 2017
DELIVERED          :   2 AUGUST 2018
FILE NO/S:   INS 62 of 2017
BETWEEN:   THE QUEEN
Prosecution
AND
KAI CHEONG LAW
First Accused
YUEN KUAN CHONG
Second Accused
CHEE SENG TANG
Third Accused

Catchwords:

Admissibility of admissions - Transcript of interviews going to the jury

Legislation:

Crimes Act 1914 (Cth)
Criminal Code (Cth)
Criminal Procedure Act 2004 (WA)
Judiciary Act 1903 (Cth)

Result:

Application allowed

Representation:

Counsel:

Prosecution	:	Mr R Maidment QC & Mr D Renton
First Accused	:	Mr J A Bougher
Second Accused	:	Ms S J Oliver
Third Accused	:	Mr P A Roth

Solicitors:

Prosecution	:	Director of Public Prosecutions (Cth)
First Accused	:	J A Bougher
Second Accused	:	Sarah Oliver
Third Accused	:	P A Roth & Associates

Case(s) referred to in decision(s):

Butera v Director of Public Prosecutions (1987) 164 CLR 180
Eastman v The Queen (1997) FCR 9; 158 ALR 107
Li v The Queen [2003] NSWCCA 290; (2003) 139 A Crim R 281
Ottaway v The State of Western Australia [2012] WASCA 120
R v Cassar [1999] NSWSC 436
R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405
R v Maqsud Ali [1966] 1 QB 688
R v Menzies [1982] 1 NZLR 40
R v Murray [2011] QSC 170
Williams v The Queen [1982] Tas R 266

FIANNACA J:

The accused Kai Cheong Law (Mr Law), Yuen Kuan Chong (Mr Chong) and Chee Seng Tang (Mr Tang) were charged on indictment, together with nine other accused, with the offence of importing a commercial quantity of a border controlled drug, namely methamphetamine, into Australia. There was a thirteenth accused charged with aiding or procuring the importation. The charges arose from an investigation conducted jointly by the Australian Federal Police, Australian Border Force and Western Australia Police.
Each of the accused, Messrs Law, Chong and Tang, took part in video recorded interviews, through interpreters, with officers of the investigating authorities. Mr Law took part in two interviews, on 3 May 2016 and 24 May 2016 respectively. Mr Chong also took part in two interviews, on 20 May 2016 and 24 May 2016 respectively. Mr Tang took part in one interview, on 20 May 2016. The prosecution intended to adduce evidence in respect of all of those interviews, by playing the video recordings of the interviews. Each of the recordings was edited by agreement between the prosecution and counsel for the relevant accused to remove irrelevant or otherwise inadmissible material.
The prosecution sought an order pursuant to s 110 Criminal Procedure Act 2004 (WA) (CPA) that the jury be given transcripts of the edited records of interview to assist the jury to understand and assess the evidence. Each of the three accused objected to the jury being provided with a transcript of his interview or interviews.
Before determining the application, I watched…

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 Law

Details

AGLC: R v Law [2018] WASC 235
Case: [2018] WASC 235
Decision Date: 2 AUGUST 2018

CaseChat Overview and Summary

The case of R v Law involved the appellant, Law, who was convicted of murder and sentenced to life imprisonment. Law appealed against his conviction, contending that the trial judge erred in admitting into evidence the transcript of his police interviews. The Court of Criminal Appeal considered the admissibility of the transcript and whether the jury should have been directed to consider it.

The court examined the legal issues surrounding the admissibility of police interview transcripts in criminal trials. Specifically, it considered whether the trial judge should have directed the jury to consider the transcript as a whole or only in relation to admissions made by the appellant. The court also considered whether the appellant's right to a fair trial was compromised by the admission of the transcript.

The Court of Criminal Appeal found that the trial judge had erred in admitting the transcript of the police interviews. The court held that the trial judge should have directed the jury to consider the transcript as a whole, rather than only in relation to admissions made by the appellant. The court found that this error had the potential to undermine the appellant's right to a fair trial. The court also found that the error was significant and had the potential to affect the outcome of the trial. The court held that the error was not trivial and could not be considered harmless.

The Court of Criminal Appeal allowed the appeal and quashed the conviction. The court ordered a retrial of the appellant, Law. The court held that the error in admitting the transcript of the police interviews had the potential to affect the outcome of the trial and therefore required a retrial. The court also held that the error was not trivial and could not be considered harmless. The court found that the appellant's right to a fair trial had been compromised and that a retrial was necessary to ensure that the appellant received a fair trial.

Orders