Reported Decision:
47 NSWLR 405
New South Wales
Court of Criminal Appeal
CITATION: Regina v Leung and Wong [1999] NSWCCA 287 FILE NUMBER(S): CCA 60825/98; 60834/98 HEARING DATE(S): 30 July 1999 JUDGMENT DATE:
15 September 1999PARTIES :
REGINA v Jackie Kai Cheu LEUNG
REGINA v Nelson Tak Fat WONGJUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Sperling J at 66
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 98/11/0134; 98/11/0132
LOWER COURT JUDICIAL OFFICER: Blanch DCJ
COUNSEL: Crown: K A Chapple
Leung: G D WendlerSOLICITORS: Crown: Commonwealth DPP
Leung: Dan Houten
Wong: Hovan & Co.CATCHWORDS: CRIMINAL LAW; Importation of commercial quantity of heroin contrary to s 233B Customs Act 1901; Opinion evidence at trial admissable and properly admitted pursuant to s 79 Evidence Act 1995; Appropriate directions given by trial judge in relation to Leung's failure to give evidence; Appeal against convictions dismissed. ACTS CITED: Evidence Act 1995
Criminal Appeal Act 1912
Customs Act 1901CASES CITED: R v Smith ([1983] NSWLR 462, ((1986)
7 NSWLR 444)
Bulejcik v R ((1996) 185 CLR 375)
R v Menzies [1982] 1 NSLR 40
R v Butera (1987) 164 CLR 180
R v Eastman (1997) 158 ALR 107
R v Cassar and Cleiman, unreported [1999] NSWSC 436, unreported.
Weissensteiner v R (1993) 178 CLR 217
R v O G D (1997) 98 A Crim R
Jones v Dunkel (1959) 101 CLR 298DECISION: Both appeals against conviction dismissed
CRIMINAL APPEAL
IN THE COURT OF60825/98
60834/98
Wednesday 15 September 1999
SPIGELMAN CJ
SIMPSON J
SPERLING J
REGINA v Jackie Kai Chu LEUNG
REGINA v Nelson Tak Fat WONGJUDGMENT
1 SPIGELMAN CJ: Subject to one matter, I agree with the judgment of Simpson J. It is unnecessary to decide the case on the basis of s78 of the Evidence Act. Like Sperling J, I would reserve my position as to the scope and effect of the section.
**********
SIMPSON J :
2 On 10 August 1998 the appellants Leung and Wong were jointly indicted on a charge that between 1 October 1997 and 8 November 1997 they were knowingly concerned in the importation into Australia of not less than the commercial quantity of heroin, contrary to s 233B of the Customs Act 1901. Each appellant entered a plea of not guilty. On 7 September 1998 after a trial lasting almost four weeks the jury returned a verdict of guilty in each case. On 18 December 1997 Davidson DCJ sentenced the appellants identically to imprisonment for twelve years with a non parole period of seven years, the sentences to commence on 8 November 1997, the date on which the appellants were arrested. A third person, Ngai Sze (also known as Edwin) Law, pleaded guilty to a similar charge and was sentenced by Blanch CJ of DC on 5 August 1998 to imprisonment for ten years with a non parole period of six years. Each appellant appeals his conviction.
3 Wong and Law…
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- AGLC
- R v Leung [1999] NSWCCA 287
- Case
- [1999] NSWCCA 287
- Decision Date
CaseChat Overview and Summary
The central legal issues addressed by the court were whether the trial judge had correctly admitted opinion evidence in accordance with section 79 of the Evidence Act 1995 and whether the judge had properly directed the jury regarding Leung's silence during the trial. Leung argued that the trial judge had erred in admitting certain opinion evidence and in providing directions to the jury regarding his failure to give evidence, which he claimed had prejudiced the jury against him. The court considered whether these errors warranted a new trial or an acquittal.
The High Court found that the trial judge had properly admitted the opinion evidence in line with section 79 of the Evidence Act 1995, as the evidence was relevant to the determination of the facts in issue and was not based on the personal beliefs or opinions of the witness. Furthermore, the court concluded that the judge's directions to the jury regarding Leung's silence were appropriate and did not prejudice the jury against him. The court held that the jury had properly considered all the evidence presented and had reached a just verdict based on the facts before them. Consequently, the court dismissed Leung's appeal against his convictions.
The final orders of the court were to dismiss Leung's appeal and uphold his convictions for the importation of a commercial quantity of heroin in contravention of section 233B of the Customs Act 1901. The court's decision confirmed the admissibility of the opinion evidence presented at trial and the correctness of the trial judge's directions to the jury regarding Leung's failure to give evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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