R v Ng

Case [2002] VSCA 108 2 August 2002

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 215 of 2000

THE QUEEN
	v.
PHILIP CHEE MING NG

JUDGES:	WINNEKE, P., BATT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	20 and 21 May 2002
DATE OF JUDGMENT:	2 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 108

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Criminal law – Conspiracy to import large quantities of heroin – Whether applicant denied constitutional right to “trial by jury” by reason of empanelment of “additional jurors” pursuant to the Juries Act 1967 (Vic.) – ss. 14(2), 14A and 48A.

Evidence – Use of listening device obtained by warrant purporting to be issued under s.219B(5) of the Customs Act 1901 (Cth.) – Whether warrant valid – Whether trial judge correct in applying s.46(1)(b) of the Acts Interpretation Act 1901 (Cth.) to validate warrant.
Evidence – Admissibility of portions of record of interview – Whether answers “voluntary” – Whether judge obliged to exclude answers in exercise of discretion – ss.23G and 23S Crimes Act 1914 (Cth.) discussed.

Conspiracy – Evidence – Sufficiency of evidence of overt acts in relation to particular importations discussed.
Sentence – Parity of sentence with co-offender discussed.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr. N.T. Robinson and
Mr. C. Moisidis

Director of Public Prosecutions (Cth.)

For the Attorney-General for the State of Victoria (Intervening)

For the Applicant

Ms. R.M. Doyle

Mr. G.D. Wendler

Victorian Government Solicitor

Allan McMonnies

WINNEKE, P.,
BATT, J.A.,
EAMES, J.A.:

On 11 July 2000, after a trial lasting nearly four months, the applicant Philip Ng – who is now aged 45 years – was convicted by a jury at the County Court in Melbourne of conspiring with others to import substantial quantities of heroin (in excess of “commercial quantities”) into Australia contrary to s.233B(1)(cb) of the Customs Act 1901 (Cth.). He was jointly tried with an alleged fellow conspirator, Derek Alan Bowhay, whom the jury acquitted. A further co-conspirator, Wai Man Li, had pleaded guilty to participation in the alleged conspiracy when first arraigned before the trial judge in March 1998. He had made admissions as to relevant facts which the judge had before him for sentencing purposes on 11 July 2000. Following pleas made on behalf of the applicant and Li, the judge, on 4 August 2000, sentenced the applicant to 25 years’ imprisonment with a non-parole period of 20 years; and sentenced Li to a period of 21 years’ imprisonment with a non-parole period of 16 years.

The applicant has applied for leave to appeal against both his conviction and sentence. Before turning to the grounds of these applications, it is both necessary and desirable for us to briefly rehearse the evidence which it was open to the jury to accept. In doing so, we will not aspire to canvass all the material which the jury was invited to examine, but sufficient of it to provide an intelligible backdrop to the grounds of appeal which were argued in this Court.

The indictment charged that, between 1 April 1996 and 14…

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 Ng

Details

AGLC: R v Ng [2002] VSCA 108
Case: [2002] VSCA 108
Decision Date: 2 August 2002

CaseChat Overview and Summary

In the case of R v Ng, the respondent was charged with conspiracy to import large quantities of heroin. The matter was heard by the Supreme Court of Victoria. The primary legal issues concerned whether the respondent was denied his constitutional right to trial by jury, the validity of a warrant used to obtain evidence, the admissibility of certain interview records, and the sufficiency of evidence regarding overt acts related to the importations. Additionally, the court examined whether the sentence imposed was commensurate with that of the respondent's co-offender.

The court first addressed the issue of the empanelment of additional jurors under the Juries Act 1967 (Vic.), considering whether this denied the respondent his constitutional right to trial by jury. It was concluded that the constitutional right was not breached by the inclusion of additional jurors. The court also examined the validity of the warrant used to obtain evidence through a listening device, determining that the warrant was indeed valid. Furthermore, the admissibility of certain portions of an interview record was scrutinized, and it was held that the judge did not err in admitting the answers, as they were deemed voluntary. The court additionally evaluated the sufficiency of the evidence presented regarding overt acts related to the importations, finding that it was adequate. Finally, the court considered the parity of the sentence with that of the co-offender and found no basis for a disparity.

The court concluded that the respondent's constitutional rights were not violated, the warrant was valid, and the evidence was admissible and sufficient. The court upheld the sentence imposed on the respondent. Consequently, the appeal was dismissed.

Orders