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R v Leung

R v Leung

Case [1999] NSWCCA 287 15 September 1999

Criminal Liability

Admissibility of Evidence

Appeal

Criminal Law

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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 1999

PARTIES :

REGINA v Jackie Kai Cheu LEUNG
REGINA v Nelson Tak Fat WONG

JUDGMENT 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 Wendler

SOLICITORS: 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 1901

CASES 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 298

DECISION: Both appeals against conviction dismissed

IN THE COURT OF
CRIMINAL APPEAL
60825/98
60834/98

SPIGELMAN CJ
SIMPSON J
SPERLING J

Wednesday 15 September 1999

REGINA v Jackie Kai Chu LEUNG
REGINA v Nelson Tak Fat WONG

JUDGMENT

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…

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 Leung

Details

AGLC: R v Leung [1999] NSWCCA 287
Case: [1999] NSWCCA 287
Decision Date: 15 September 1999

CaseChat Overview and Summary

The case of R v Leung involved the respondent, Leung, who was charged with importing a commercial quantity of heroin into Australia in contravention of section 233B of the Customs Act 1901. The case was heard and determined in the High Court of Australia. Leung's appeal against his convictions was dismissed, with the Court confirming the admissibility of opinion evidence presented during the trial, the appropriateness of the trial judge's directions regarding Leung's failure to give evidence, and the correctness of the jury's verdicts.

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