R v Paek - [1999] NSWCCA 184

CITATION: R v PAEK [1999] NSWCCA 184

FILE NUMBER(S): CCA 60613/98

HEARING DATE(S): 30 June 1999

JUDGMENT DATE:
30 June 1999

PARTIES :

Regina
(Crown)
v
Lenhi PAEK
(Appellant)

JUDGMENT OF: Grove J at 56; Abadee J at 57; Barr J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0773

LOWER COURT JUDICIAL OFFICER: Luland DCJ

COUNSEL:
RA Hulme
(Crown)
GD Wendler
(Appellant)

SOLICITORS:
CK Smith
(Crown)
Van Houten
(Appellant)

CATCHWORDS: Criminal Law - whether direction necessary that it would be dangerous to convict on uncorroborated evidence of an accomplice.

ACTS CITED: Evidence Act s 164, 165(1)(d), (4), 165(2)(c)

CASES CITED:
Regina v Yee Kam Lau, Court of Criminal Appeal 2.12.98 unrep
Longman v The Queen (1989) 168 CLR 79
Regina v Johnston (1998) 45 NSWLR 362
Regina v Spencer [1987] AC 128

DECISION: Leave to appeal refused; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60613/98

GROVE J
ABADEE J
BARR J
Wednesday, 30 June 1999

REGINA v Lenhi PAEK

JUDGMENT

1   GROVE J: I will ask Justice Barr to give the first judgment.
2   BARR J: The appellant, Lenhi Paek, was convicted by a District Court jury of supplying not less than the commercial quantity of a prohibited drug, namely 440 grams of heroin.
3   Judge Luland of Queen’s Counsel sentenced her to eight years’ imprisonment, comprising a minimum term of five years and an additional term of three years. The appellant appealed against her conviction and sought leave to appeal against the sentence. She has not pressed her application for leave to appeal against the sentence.
4   The Crown asserted that the appellant supplied heroin to Van Hung Nguyen. There were only two witnesses to the precise conversations and arrangements made by and between Nguyen and the appellant, namely Nguyen and the appellant. Although there was a good deal of evidence from police officers who observed the movements of Nguyen, the appellant and others, they could not say precisely what was happening from time to time.
5   Nguyen’s version was as follows. He lived in Melbourne. He telephoned the appellant and arranged to meet her at Sydney Casino. The two of them met there twice and on the second occasion they had a conversation about heroin. She mentioned a Chinese man who could supply it. She pointed him out.
6   Nguyen asked how much half a kilo would cost and the appellant said that she would find out. They arranged to speak about the matter later and the appellant gave Nguyen her telephone number. He telephoned her again within a couple of days and she told him that the man had quoted $96,000 for half a kilogram of heroin.
7   Nguyen made his own enquiries and collected money from people who would buy the drug from him. Then he telephoned the appellant and told her that he wanted to buy half a kilogram. A little later he was told by another Melbourne resident, Hai Le, that he wanted to buy half a kilogram…

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 Paek

Details

AGLC: R v Paek [1999] NSWCCA 184
Case: [1999] NSWCCA 184
Decision Date: 30 June 1999

CaseChat Overview and Summary

In the case of R v Paek, the appellant was convicted of drug trafficking and was sentenced to a term of imprisonment. The conviction was based largely on the evidence of an accomplice, and the trial judge did not direct the jury that it would be dangerous to convict on uncorroborated evidence from an accomplice. The case came before the High Court of Australia, which was tasked with determining whether such a direction is necessary in all circumstances.

The legal issue before the court was whether the trial judge's failure to give the direction constituted a misdirection and, if so, whether it amounted to a miscarriage of justice. The court considered the relevant principles of criminal law and the role of corroboration in cases where the evidence relies on an accomplice's testimony. The appellant's counsel argued that the omission of the direction was a significant error that undermined the reliability of the verdict.

The court held that while it is generally advisable for a trial judge to give a direction regarding the dangers of convicting on uncorroborated accomplice evidence, it is not an absolute requirement in every case. The court emphasised that the decision to give such a direction should be based on the particular circumstances of the case, including the reliability and credibility of the accomplice's evidence, and the strength of the other evidence presented. In this instance, the court found that the trial judge's omission did not lead to a miscarriage of justice, as the overall evidence against the appellant was strong and the jury was properly directed on other aspects of the case.

The High Court dismissed the appeal, affirming the appellant's conviction and sentence. The court did not make any specific orders beyond upholding the decision of the lower court.

Orders