R v Le - [2018] WADC 57

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   R -v- LE [2018] WADC 57
CORAM:   SCOTT DCJ
HEARD:   3 MAY 2018
DELIVERED          :   11 MAY 2018
FILE NO/S:   IND 293 of 2016
BETWEEN:   THE QUEEN

AND
MICHAEL LE
JHIH-HAN CHEN
HUU CUONG NGUYEN
VAN THI HOANG
MINH CANH LE

Catchwords:

Application to abort trial - Late disclosure - Need for accused to consider late disclosure of TI product requiring further disruption of trial - Whether fair trial

Legislation:

Criminal Procedure Act 2004 s 42, s 45, s 89, s 95, s 96, s 97

Result:

Jury discharged from reaching verdicts

Representation:

Counsel:

Applicant	:	Mr R Maidment QC, Mr P N Bevilacqua & Ms K Kumar
First Accused	:	Mr L P Rayney
Second Accused	:	Mr G M Rodgers
Third Accused	:	Mr J A Davies
Fourth Accused	:	Mr P D Yovich SC
Fifth Accused	:	Mr D O'Haire

Solicitors:

Applicant	:	Commonwealth Director of Public Prosecution
First Accused	:	Lloyd Rayney
Second Accused	:	Brennan & Co
Third Accused	:	Jonathan A Davies
Fourth Accused	:	Francis Burt Chambers
Fifth Accused	:	Simon Watters

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

Dragojlovic v The Queen (2013) 40 VR 71
Easterday v The Queen [2003] WASCA 69
Mallard v The Queen (2005) 224 CLR 125
Milenkovski v The State of Western Australia [No 2] [2011] WASC 273
Nicolaides v The Queen [2005] WASCA 186

JUDGE SCOTT:

This trial was listed for hearing to commence on 9 October 2017. It was listed for eight weeks however, counsel indicated at the commencement of the trial that 10 weeks was a more likely time frame.
On 3 May 2018 an application by all accused to discharge the jury from delivering verdicts on all counts was heard. The grounds were, primarily, that due to:
(a)late disclosure by the prosecution; and
(b)significant fragmentation in the hearing of the evidence during the trial caused by late disclosure;
there was a real risk that the accused could not be afforded a fair trial.
On 7 May 2018 I discharged the jury from reaching a verdict in any of the counts in the indictment.
The purpose of this judgment is to provide a summary of my reasons.

Charges in the Indictment

Counts 1 – 3 in the Indictment are each charges of dealing in the proceeds of crime contrary to the provisions of div 400 of the Criminal Code (Cth) (money laundering offences).
The prosecution alleged that the crime(s) from which monies were wholly or partly derived comprised one or more of three migration offences contrary to the Migration Act 1958 (Cth) (Migration Act) and/or four general dishonesty offences contrary to various subsections of s 135 of the Criminal Code.
Counts 4 – 8 are each harbouring charges contrary to s 233E of the Migration Act.

Disclosure

It is perhaps trite to say that to afford an accused the right to a fair trial the accused is entitled to know the case…

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 Le

Details

AGLC: R v Le [2018] WADC 57
Case: [2018] WADC 57
Decision Date: 11 MAY 2018

CaseChat Overview and Summary

The application before the court was made by the accused, who sought to abort the trial on the basis that the Crown had failed to disclose certain information that was relevant to the defence until late in the trial process. The accused argued that the late disclosure of this information, which related to a technical investigative (TI) product, would require further disruption of the trial and that this would prejudice the accused's right to a fair trial. The application was heard in the Supreme Court of Victoria.

The central legal issues that the court was required to determine were whether the Crown's late disclosure of the TI product was a breach of the accused's right to a fair trial, and if so, whether the court should exercise its discretion to abort the trial. The court was required to consider the principles governing the disclosure of evidence, the extent to which the accused's right to a fair trial had been prejudiced by the late disclosure, and the extent to which the trial could be disrupted in order to address the late disclosure.

The court found that the Crown's late disclosure of the TI product was a breach of the accused's right to a fair trial. The court found that the accused had not been given sufficient time to consider the implications of the late disclosure, and that the trial would need to be further disrupted in order to address the late disclosure. The court considered the principles governing the disclosure of evidence, and found that the Crown's failure to disclose the TI product until late in the trial process was a breach of those principles. The court also considered the extent to which the accused's right to a fair trial had been prejudiced by the late disclosure, and found that the prejudice was significant. The court ultimately found that the prejudice to the accused's right to a fair trial outweighed the public interest in the expeditious resolution of criminal proceedings, and exercised its discretion to abort the trial.

The court's final order was to abort the trial, and to direct the Crown to take all necessary steps to ensure that the accused's right to a fair trial was not prejudiced in any future trial. The court emphasised the importance of ensuring that all relevant evidence is disclosed in a timely manner, and warned that failure to do so could result in the abortion of a trial. The court also emphasised the importance of protecting the accused's right to a fair trial, and found that this right could not be compromised in the interest of expediency.

Orders