R v Minh Cheun
[2011] NSWCCA 5
•7 February 2011
This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Criminal Appeal
New South Wales
Case Title: R v Minh CHEUN Medium Neutral Citation: [2011] NSWCCA 5 Hearing Date(s): 19 November 2010 Decision Date: 7 February 2011 Jurisdiction: Before: Simpson J at 1, Price J at 2, Garling J at 49
Decision: The Crown appeal be dismissed.
Catchwords: CRIMINAL LAW - sentencing - Crown appeal - sentence reduced by assistance - partial failure to provide assistance - s 21E Crimes Act (Cth) - reasonable excuse - onus of proof
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
International Transfer of Prisoners Act 1997 (Cth)
Local Courts (Criminal and Applications Procedure) Rule 2003 (repealed on 18 December 2009)Cases Cited: R v YZ [1999] NSWCCA 263
R v Springer [2009] NSWCCA 144
DPP (Cth) v Haunga [2001] VSCA 73Texts Cited: Category: Principal judgment Parties: Director of Public Prosecutions (Cth) (Applicant)
Minh Cheun (Respondent)Representation - Counsel: Counsel:
R Sutherland SC (Crown)
Mr R M Sweet (Respondent)- Solicitors: Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Leader Law Group (Respondent)File number(s): CCA 2007/15367 Decision Under Appeal - Court / Tribunal: District Court - Before: Judge Hulme SC - Date of Decision: 07 March 2008 - Citation: - Court File Number(s) DC 07/11/0166 Publication Restriction:
Judgment
SIMPSON J : I agree with Price J.
PRICE J : The Crown appeals the sentence imposed upon the respondent in the District Court on 7 March 2008 on the ground that he without reasonable excuse did not co-operate with law enforcement agencies, as required by the undertaking made by him on 9 November 2007 pursuant to s 21E Crimes Act 1914 (Cth).
The respondent had pleaded guilty to a single count of attempting to possess a commercial quantity of 3,4 methylenedioxy-methamphetamine (ecstasy) pursuant to ss 11.1(1) and 307.5(1) Criminal Code 1995 (Cth).
The maximum penalty for such an offence is life imprisonment. Hulme SC DCJ (the sentencing judge) sentenced the respondent to imprisonment for 17 years 6 months with a non-parole period of 11 years.
The respondent was sentenced with the benefit of a twenty per cent discount on sentence for past and future co-operation and the Crown contends that the respondent, without reasonable excuse, failed "in part" to co-operate in accordance with his signed undertaking. It is not the Crown case that the respondent has failed entirely to co-operate in accordance with the undertaking. The Crown accepts that the respondent in conformity with his undertaking conferred with the solicitor for the Commonwealth Director of Public Prosecutions and counsel briefed in respect of committal proceedings and gave evidence over three days in the Local Court. The respondent, however, before he re-commenced his testimony on the fourth day declined to answer further questions. The Crown contends that the respondent's refusal to continue answering questions was highly significant as it ultimately caused the complete failure of the prosecution case against two co-accused who had been arrested on an understanding that the respondent would comply with his undertakings. The Crown asks that the respondent's sentence be increased with regard to the 2 years 6 months which was allowed as a discount in respect of "future assistance". A discount of 10 per cent was specifically allowed by the sentencing judge for future co-operation.
Section 21E(3) Crimes Act , relevantly, is as follows:
"Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person's undertaking to co-operate with law enforcement agencies, the court hearing the appeal:
(a) if it is satisfied that the person has failed entirely to
co-operate in accordance with the undertaking-must
substitute for the reduced sentence or reduced non-parole
period the sentence, or non-parole period, that would have
been imposed on, or fixed in respect of, the person but for
that reduction; and
(b) if it is satisfied that the person has failed in part to co-operate
in accordance with the undertaking-may substitute for the
reduced sentence or reduced non-parole period such a
sentence, or such a non-parole period, not exceeding in
length the sentence that could be imposed, or the non-parole
period that could be fixed, under paragraph (a), as it thinks
appropriate."
This Court has held on an appeal under s 21E Crimes Act that there is an onus on the Crown to satisfy the Court beyond reasonable doubt that the failure of an offender to co-operate in accordance with his undertaking was without reasonable excuse: R v YZ [1999] NSWCCA 263 at [20] per Sully J; R v Springer [2009] NSWCCA 144 at [45] per James J. No good reason was advanced by the Crown as to why this Court should not follow this line of authority.
The respondent argues that the Crown cannot comply with its onus to satisfy this Court beyond reasonable doubt that his failure to cooperate, in accordance with his undertaking, was without reasonable excuse. The respondent says that he complied with his undertaking until it came to his notice that his mother's address in China had been disclosed to the co-offenders when his statement, which included her address, was served as part of the prosecution brief. He was fearful that his family members who resided at that address might be harmed if he continued to give evidence. He sought legal advice and eventually declined to give any further evidence. By failing to delete his mother's address from the statement which was served on the co-offenders, the respondent submits that the Crown failed to comply with rule 12 of the Local Courts (Criminal and Applications Procedure) Rule 2003 (repealed on 18 December 2009) which then applied to the committal proceedings.
Rule 12(1) relevantly provided that a copy of a written statement served on an accused person in committal proceedings must not disclose the address of the person who made the statement or of any other living person unless the address is a materially relevant part of the evidence or a magistrate makes an order permitting the disclosure in the statement. The Crown does not submit that a magistrate made a disclosure order. Before venturing further, it is convenient to summarise the facts upon which the respondent was sentenced and the extent of the respondent's co-operation.
Background
The facts upon which the respondent was sentenced may be conveniently summarised as follows. On 5 June 2006, a container arrived in Melbourne from Canada containing cardboard boxes labelled as ink or toner. Hidden within a large number of boxes were 2,572 vacuum-sealed bags each containing about 100 ecstasy tablets. There were in all some 257,200 ecstasy tablets with an estimated street value of $40 million. Following discovery of the consignment by Australian Customs in Melbourne on 7 June 2006 the drugs were substituted by the Australian Federal Police with inert tablets. On 15 June 2006, the consignment was transported from the storage facility in Melbourne to a storage facility at Blacktown in Sydney.
The respondent arrived in Australia on 21 June 2006. He was born in China and had become a Canadian citizen. He had come to Australia for the specific purpose of overseeing the collection and initial distribution of the drugs in the consignment.
The Crown alleges that following his arrival in Australia, the respondent met with Michael Ip (Ip) and Xu Huang (Huang) on a number of occasions and had been given instructions by them in relation to the collection of the consignment and the location to which he was to take the boxes. On 28 June 2006, the respondent, with the assistance of a courier driver removed the boxes from the Blacktown storage facility to the courier driver's home at Bankstown. Police followed the courier's truck during the journeys but unbeknown to them, Ip and Huang were following the truck in another vehicle. The Crown alleges that Ip and Huang were present when the boxes were collected. Telephone calls to the respondent indicate that Ip and Huang had become suspicious that the courier's truck was being followed by police and they withdrew from the enterprise. They gave instructions to the respondent to unload the consignment somewhere other than the originally identified location. Johnson Au (Au) and Xiao Yuan Zeng (Zeng) were then recruited into the venture and the Crown alleges that they took over the roles which had been intended to be carried out by Ip and Huang.
The boxes were removed from the courier driver's home to Zeng's premises where the respondent, Au and Zeng were arrested in the course of unpacking the boxes on 29 June 2006. Each of them was charged with attempting to possess a commercial quantity of ecstasy.
The respondent pleaded guilty on 20 June 2007. He signed an undertaking pursuant to s 21E Crimes Act on 9 November 2007 promising to provide future assistance to the authorities. The form of that undertaking was as follows:
"I, Minn Cheun, do hereby undertake to co-operate with law enforcement agencies, pursuant to section 21E Crimes Act 1914
(C'th), and in particular to do the following things:
1. To give full and frank evidence for the Crown in accordance with my statements dated 19 June 2007 and 25 October 2007 and any other statement to be given in furtherance of this undertaking, in any court proceedings, including confiscation proceedings, that the Crown may nominate, in respect of any person involved in the charge for which I am being sentenced including:
Johnson Au
Xiao Yuan Zeng
2. To provide to Federal Agent Brett James or any other officer nominated by the Australian Federal Police, any further full and frank voluntary statement in writing regarding my knowledge of and participation in any matter relating to the charge for which I am being sentenced and description of other activity/matters reasonably required by the Australian Federal Police.
3. To confer with the Australian Federal Police, the Commonwealth Director of Public Prosecutions, and counsel briefed by the Director of Public Prosecutions, in relation to any court proceedings referred to above, and to provide upon request a supplementary voluntary statement(s) of any further evidence in relation to matters arising from any such conference."The respondent had made a comprehensive statement to the Australian Federal Police dated 19 June 2007 which included the factual circumstances of his involvement with Ip and Huang. He subsequently identified Ip and Huang on photo boards prepared by police and signed identification statements. Ip and Huang were arrested in May 2008 on the basis of the information provided by the respondent. Although the undertaking did not specifically name Ip and Huang, the respondent accepts that its terms required him to give "full and frank" evidence against them.
Au had pleaded guilty on 4 May 2007 and Zeng was found guilty by a jury on 6 July 2007. The respondent was not called to give evidence against either of these co-offenders.
When the respondent was sentenced on 7 March 2008, the sentencing judge in his remarks on sentence said:
"The offender has signed an undertaking to give evidence in proceedings against any of his co-offenders. That has not of course been necessary in the cases of Zeng and Au. The Crown may possibly call him to give evidence in proceedings against two others who have been charged and perhaps two others who have not as yet been charged. He has provided three statements to police. His assistance has been rated by the Australian Federal Police as "high".
The offender is being held in protective custody at the Special Purpose Centre at Long Bay. I was not provided with any evidence as to any restrictions or deprivations that might be involved in such an arrangement. I accept, however, that the custodial authorities will be limited in the options they have as to classification and transfer of the offender whilst he is serving his sentence. If the level of perceived threat to his safety remains as it is at present he will likely serve the entirety of his sentence where he presently is. On the basis of this assistance I propose to discount the sentence to be imposed upon the offender by twenty per cent. Half of that is for assistance to date and half is for the promised future assistance."After being sentenced, the applicant applied for leave to appeal against the severity of the sentence but the appeal was dismissed in April 2009.
The committal proceedings of Ip and Huang commenced in the Local Court and the respondent gave evidence in accordance with his undertaking on 15 June 2009. In evidence-in-chief, he identified his 38-page statement made in June 2007 and two statements made on 25 August 2007. He was then cross-examined for the balance of the day. The hearing was adjourned until 20 November 2009 and the cross-examination of the respondent continued on that day and on 24 November 2009.
When he was recalled for further cross-examination on 27 November 2009, he informed the magistrate that he had "an important message for the court". The magistrate declined to read the note but ascertained from the respondent that he no longer wished to give evidence. A short adjournment then followed during which the respondent spoke to a solicitor from the Legal Aid Commission. Upon resumption of the hearing, the respondent said:
"Your Honour, I'm not going to give any evidence today. I would ask your Honour for permission for few days so I can consider my circumstances."
The respondent was excused by the magistrate from further attendance at the committal proceedings which were subsequently adjourned to 26 February 2010.
On 7 December 2009, Robert Sutherland SC, a Cantonese interpreter and Jennifer Peterson, a solicitor with the Commonwealth Director of Public Prosecutions, had a conference with the respondent in Long Bay Gaol. Mr Sutherland had appeared for the Crown in the committal proceedings, being instructed by Ms Peterson. He appeared for the Crown in the present appeal.
In an affidavit sworn 12 October 2010, Ms Peterson states at pars 20-23:
"The Respondent stated that during the course of his cross-examination he realised that Ip and Huang's legal representatives
had a copy of his statement (dated 27 June 2009) that he had provided to police and as that statement contained details of his address in Canada and his mother's address in China, he was concerned for his family's safety.
The Respondent stated that he had received a message from his wife in June or July 2007 that someone had telephoned her to warn the Respondent not to say anything. He however confirmed that since then, neither he nor his wife had received any further warnings or threats.
The Respondent also confirmed that he no longer had any connection to the address in Canada but stated that his mother still resided at the same address in China. He further stated that his mother remained unaware of his offending behaviour and that his brother (who was aware of the Respondent's incarceration) now resided with her."Federal Agent Daniel Boyd visited the respondent at Long Bay Gaol on 18 December 2009. In an affidavit sworn 28 September 2010, Mr Boyd recounts at par 9 that:
"[The respondent] then stated his refusal to discuss anything with the AFP, adding that he did not care what happened to him but was concerned only for his family."
Ms Peterson was advised on 25 February 2010 by Mr Dawe, a solicitor from the Legal Aid Commission, that he had provided certain advice to the respondent who was considering his position. The Crown, on the following day, sought an adjournment of the committal hearing to consider whether an application should be made to recall the respondent. The adjournment was granted with costs for the day being awarded against the Crown. Ms Peterson was subsequently informed that the respondent was unwilling to give evidence.
The charges against Ip and Huang were withdrawn on 2 July 2010.
The Crown accepted that the respondent's statement, which had been served on Ip and Huang, provided details of his last address in Canada and more significantly at par 28 his mother's address in China.
Ms Peterson and Federal Agent Boyd gave evidence in this Court as did Federal Agent Brett James who swore an affidavit dated 15 November 2010.
Matters of Evidence
In an affidavit sworn 8 November 2010, the respondent states at par 12:
"...when the matter resumed on 27 November 2009, I discovered that a statement I made in which I gave the addresses of family members in Canada and China in response to questions by the Australian Federal Police had been given to the defence lawyers. I was shocked by this discovery. I was assured by the Australian Federal Police when I answered their questions that my family members' addresses would not be disclosed to my co-accused. I cannot remember the precise words of the police interviewer but the assurance was to this effect. I declined to give further evidence on 27 November 2009 and instructed my legal representatives that I wanted the matter to be adjourned so that I could obtain legal advice. This was because I was very disturbed to find out that copies of statements I had previously made containing names and addresses of my family members in Canada and China were in the possession of the co-accused."
and at par 24:
"If I had known that the Australian Federal Police were going to give the lawyers for Ip and Huang my mother's address in China I would not have given the undertaking. I saw no reason for the Australian Federal Police to disclose my mother's address. I still fear that some harm may come to my mother and brother as a result of the statement I made at the trial of Ip and Huang."
The respondent was required for cross-examination in this Court. His evidence on the topic of when he discovered that the defence had his statement included the following (T27 L14-27; T32 L39-50 - T 33 L1-10; T33 L32-40):
"Q: What was it about that realisation that led you to decide to not continue to answer questions?
A. INTERPRETER: Well, I attend the local - on various number of occasions and I was very cooperative in giving evidence on a number of days. I give a full day's evidence on the first day and then during the second, third and fourth I was not required. I just sit at the gaol underneath the magistrate - and then - but on the fifth occasion when the defence barrister start to cross-examine me holding my statement in his hand and cross-examining me bit by bit on my statement suddenly the thought of, my address will be on the statement and this idea suddenly came to me and I was so scared and I sweat all over and then I have to ask for an adjournment and then I went down to the cells and then think over and over and over and over again and then I asked for
formal legal advice and after lengthy consideration then I decided to withdraw my giving of evidence.
...
Q. Yes, but the significance is this, sir, that you didn't see somebody with the statement and discover on that day that the defence had your statement did you?
A. INTERPRETER: Not true, not true. I remember that the not was shortly written before I decide to formally from the court that I refuse to give further evidence. I want to correct myself and actually I did indicate my reluctance to give evidence on the second-last occasion when I appear in the magistrate court. I did signal my disinclination to give any further evidence and after the second last occasion at the magistrate court, I went back to the cells - I went back to my gaol because my English was not very good so I asked some cellmates who wrote good English to help me to write out that note so that I can bring it to the court on the next occasion which is the last occasion when I went to the magistrate court for the committal proceedings and then on that day I intend to show to the magistrate that I don't want to give any further evidence.
Q: So is it the fact that the assertion that you discovered that the defence had your statement was something that occurred on 27 November. That's wrong is it?
A. INTERPRETER: Yes, that's wrong. I remember, that should be on the one prior occasion. I want to apologise for this mistake.
...
Q: And now you say that it was on the second-last occasion that you realised and that you indicated your reluctance in the course of that day?
A. INTERPRETER: Yeah, to put it in a nutshell or to clear things up, I think the thrust of the matter is that the prosecution divulge my mum's address to the other side, whether is on the last day or the second-last day is immaterial. I discovered that fact at some stage during the committal proceeding and I give it some lengthy thought, thought it over and over again, and I thought it's very, very endangering me and then I decided to tell the magistrate that I will not be giving any further evidence. That's the thrust of the matter." (underlining added)
Mr Sutherland suggested to the respondent that his attitude to giving evidence changed not because he feared for his family but as he believed that he would not be transferred to Canada to serve the balance of his sentence until after he was no longer required to give evidence. The respondent had made an application on 21 July 2009 under s 16 International Transfer of Prisoners Act 1997 (Cth) to transfer to Canada to complete serving his sentence.
The respondent rejected that suggestion and said that he knew he would not be considered for an international transfer until after all the trials were finished satisfactorily.
The Crown submits that the first question to be determined was why the respondent stopped giving evidence in the committal proceedings. The Crown points to the respondent's reference to both the Canadian address and the address in China in his affidavit and to the inconsistencies in his evidence before this Court as matters impacting upon the respondent's credibility. The Crown argues that it was inconceivable that he did not know that he would be cross-examined on his statement. Furthermore, a reading of his statement would indicate that where he lived in China was known well before the address was detailed in the statement and that was the reason he succumbed to the entreaties of the co-offenders to join the criminal enterprise. The Crown contends that the Court would reject the respondent's explanation that he stopped giving evidence out of fear for the safety of his mother as her address had become known to defence counsel in Sydney.
A close reading of the transcript of the committal hearing reveals that the respondent's statement of 19 June 2007 was shown to him by the Crown when he commenced his evidence on 15 June 2009 and there was a general reference to it in cross-examination on that day and on 20 November 2009 by one of the co-accuseds' counsel. The respondent, however, was not taken to any paragraphs of the statement by counsel until he was cross-examined at some length upon it on 24 November 2009. This supports the respondent's evidence in the passage underlined at [30] above that it was not until the defence barrister started to cross-examine "bit by bit" on his statement, that it occurred to him that the co-offenders had copies of the statements he had made containing his mother's address in China. When he was recalled for cross-examination on 27 November 2009, he told the magistrate that he was not going to give further evidence.
Whilst there were inconsistencies in the respondent's testimony in this Court, it is hardly surprising given the extended period over which he gave evidence in the committal hearing that there was some imprecision as to when he first became aware that the co-offenders had his mother's address and he indicated a reluctance to continue his evidence.
The Crown's suggested motive for the respondent's refusal to continue his evidence as he believed his application for a transfer to Canada would not be granted until he was no longer required to give evidence would only make sense if it was established that this requirement was brought to the respondent's attention between 24-27 November 2009 which the Crown failed to do.
I do not find that the respondent's dismay in ascertaining that the Canadian address was included in the served statement detracts from his credibility. Although the lease had expired when he left Canada, the respondent's reluctance for his co-offenders to know any of his addresses is understandable. Federal Agent James in his affidavit at par 9 states that the applicant "had previously mentioned that he was concerned about the safety of his girlfriend in Canada and his mother and child in China."
During oral evidence in this Court, Ms Peterson recalled that the respondent had been informed that he would be cross-examined at the committal hearing on the content of his statement. On the other hand, the respondent's evidence was that he knew that when he went to court, he would be questioned about his participation in the criminal enterprise but did not know that defence counsel would ask him questions "based on reading [his] statement". In any event, it seems that he was not informed that his mother's address would remain in the statement when it was served on the co-offenders. Ms Peterson testified that she did not turn her mind to excising that address from the statement prior to service. Federal Agent James gave evidence that he did not think anything about the address at the time it was disclosed. He, however, understood that the disclosure of the mother's address could be a cause of concern. Federal Agent Boyd agreed in cross-examination that when he saw the respondent in December 2009 he was a worried man who was very concerned that his family might be harmed.
Whilst the respondent's statement of 19 June 2007 recounts that he was picked up by "Dave" nearby his home in China and that he was told by "Andrew" that Andrew knew that he had a daughter, a mother and where he lived, I am not persuaded that his co-offenders actually knew where his mother lived prior to service of the statement upon them. It was the respondent's evidence that he had not divulged his "exact address" to anyone and that Dave did not know his address. He believed that Andrew was "bluffing".
I do not accede to the Crown's invitation to reject the respondent's evidence. The respondent had testified in the Local Court in accordance with his undertaking for three days and the only rational explanation for his disinclination to co-operate further was his discovery that the address where his family members lived had been disclosed and he feared for their safety. I accept the respondent's explanation for his refusal to give further evidence.
Reasonable excuse?
The Crown argued that the respondent's realisation that his statement containing his mother's address was in the hands of defence lawyers in Sydney did not amount to a reasonable excuse for his failure to comply with the undertaking. The Crown cited what was said by Tadgell JA in DPP (Cth) v Haunga [2001] VSCA 73 at [12] when considering "reasonable excuse":
"The only fair inference to be drawn from such information as there was is that the respondent was frightened or apprehensive about the consequences to him (or perhaps others) of his giving evidence. That, however, cannot by itself be treated as a "reasonable excuse" in terms of s. 21E..., the jeopardy in which the respondent would or could place himself by giving evidence was one of the factors that would have led the sentencing judge to reduce the sentence that he would otherwise have imposed. The inevitable conclusion must therefore be that the facts demonstrate an absence of reasonable excuse for the respondent's failure to co-operate in accordance with his sworn undertaking."
In the present case, the respondent gave evidence before the sentencing judge that he was worried about his family and said during cross-examination in this Court that he agreed to participate in the criminal activity because he believed that his family members might be in danger. The respondent knew that by giving evidence in accordance with his undertaking the peril to his family would be increased. As was pointed out by Tadgell JA in Haunga that, "by itself", would not amount to a reasonable excuse. Notwithstanding the respondent's knowledge of the increased risk to his family, he gave evidence in the committal hearing until he became aware that his family members in China had been further jeopardised by the service of the statement.
Rule 12 of the Local Courts (Criminal and Applications Procedure) Rule prohibited disclosure of addresses in a copy of a written statement served on an accused person in committal proceedings unless the address was a materially relevant part of the evidence or a magistrate made an order permitting disclosure. The balancing process that a magistrate was required to undertake before making an order under r 12(3) permitting disclosure evinces the intent of r 12 to prevent risk to the welfare or protection of witnesses and other living persons that might arise by inclusion of an address (or telephone number) in a copy of a served statement.
Rule 12(3) is as follows:
"The Magistrate must not make any such order unless satisfied that the disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice (including the accused person's right to prepare properly for the hearing of the evidence for the prosecution) outweigh any such risk."
Ms Peterson told this Court that she was of the view that the respondent's mother's address was materially relevant because it related to the respondent's credibility. Whilst that might have been so when the Federal Police Officers were taking his statement, I have difficulty understanding how the mother's address was a materially relevant part of the evidence in the committal proceeding. Regrettably, no consideration was given by the solicitor or by the Federal Police to either the obligations imposed by r 12 or the respondent's concerns for the safety of his family.
Federal Agent James, in his affidavit at par 9, recounts that the respondent did not identify to him that the presence of the addresses in his statement would be an issue or would jeopardise his undertaking to give evidence. This could not possibly justify the failure to excise the mother's address from the statement before it was served, as the respondent was unaware that a copy of the statement would be served without excision of that address.
I conclude that the respondent's heightened concerns for the safety of his family members which arose from the failure by the prosecution to comply with r 12 amounts in the circumstances of this case to a reasonable excuse. The Crown, in my opinion, has not established beyond reasonable doubt that the respondent without reasonable excuse failed in part to honour his undertaking
The order that I accordingly propose is that the Crown appeal be dismissed.
GARLING J: I agree with Price J.
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Amendments
02 Mar 2011 added Respondent's Counsel Paragraphs: coversheet
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