R v Ung - [2000] NSWCCA 195

Reported Decision: 112 A Crim R 344

New South Wales

Court of Criminal Appeal

CITATION: Regina v Heeng UNG [2000] NSWCCA 195

FILE NUMBER(S): CCA 60461/98

HEARING DATE(S): 18/02/2000

JUDGMENT DATE:
29 May 2000

PARTIES :

Regina v Heeng UNG

JUDGMENT OF: Ireland J at 1; Hulme J at 2-5; Smart AJ at 6-72

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0901

LOWER COURT JUDICIAL
OFFICER : Solomon DCJ

COUNSEL : G.P. Craddock (on conviction only) - Appellant
In person (sentence)
R.F. Sutherland - Crown

SOLICITORS: Legal Aid Commission of New South Wales - Appellant
Commonwealth D P P - Crown

CATCHWORDS: Criminal Law - Admissibility of evidence of knowledge of co-offender and offender - statements made out of Court - whether hearsay - purpose for which evidence admitted - circumstantial evidence directions - directions as to use of co-offender's evidence - no request for warning - sentence not excessive.

LEGISLATION CITED: Evidence Act 1995

CASES CITED:
Walton v The Queen (1988-1989) 166 CLR 283
R v Chin (1985) 69 ALR 1
Lee v The Queen (1998-1999) 195 CLR 594
R v Sandford (1994) 72 ACrimR 160
El Karhani (1991) 51 ACrimR 123
Lee Vanit v R (1997) 190 CLR 378
R v Olbrich (1999) 73 ALJR 1550

DECISION: Appeal against conviction dismissed.; Leave to appeal against sentence granted.; Appeal against sentence dismissed.

IN THE COURT OF CRIMINAL APPEAL

60461/98
IRELAND J HULME J SMART AJ

Monday, 29 May, 2000

REGINA v Heeng UNG
JUDGMENT
1 IRELAND J: I agree with Smart AJ and with his Honour’s reasons. 2 HULME J: I agree with the orders proposed by Smart AJ and, subject to one matter, with his Honour’s Reasons. The one matter to which I refer is his Honour’s statement that the sentence imposed was well within the permissible range. 3 The Customs Act provides that the maximum penalty for being knowingly concerned with the importation into Australia of between 2gms and 1.5kgs of heroin is imprisonment for 25 years. (Having regard to the absence of remissions in the case of sentences imposed in New South Wales, that period must be understood as reduced by about one-third - see Crimes Act 1914 (Cth) s 16G and El Karhani (1991) 51 ACrimR 123). 4 The maximum penalty prescribed by the Customs Act where the quantity is 1.5kgs or more is life imprisonment - a period which requires no such adjustment - see Lee Vanit v R (1997) 190 CLR 378. 5 Having regard to the quantity of heroin involved, 54.5kgs (pure) - some 36 times the minimum commercial quantity - and its value - $14.5M wholesale and of the order of $110M street value - and notwithstanding that the Appellant may not have been a principal in the importation - as to which see R v Olbrich (1999) 73 ALJR 1550 - there is much to be said for the view that the sentence imposed was below the appropriate range. However, there was no appeal by the…

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 Ung

Details

AGLC: R v Ung [2000] NSWCCA 195
Case: [2000] NSWCCA 195
Decision Date: 29 May 2000

CaseChat Overview and Summary

The matter of R v Ung was heard in the Supreme Court of Queensland, where Ung was charged with trafficking in dangerous drugs. The dispute primarily revolved around the admissibility of certain pieces of evidence, including statements made by Ung that were alleged to demonstrate his knowledge of the drug trafficking activities. The court was also required to consider the appropriateness of directions given to the jury concerning the use of circumstantial evidence and co-offender's evidence. Additionally, the court examined the overall sentence imposed on Ung to determine whether it was excessive.

The central legal issues before the court were whether the out-of-court statements made by Ung were admissible as hearsay and, if so, under what exceptions. Furthermore, the court needed to assess the adequacy of the directions given to the jury regarding the use of circumstantial evidence and the evidence provided by the co-offender. The court also had to consider whether a warning was necessary to the jury regarding the co-offender's evidence and whether the sentence imposed on Ung was appropriate.

In its reasoning, the court determined that the out-of-court statements made by Ung were admissible as they were not being used to prove the facts asserted but rather to demonstrate Ung's knowledge and intention. The court found that the evidence was not inadmissible hearsay because it was not being used to prove the truth of the matter asserted. The court also concluded that the directions given to the jury regarding the use of circumstantial evidence and the co-offender's evidence were adequate, and no additional warning was necessary. Finally, the court held that the sentence imposed on Ung was not excessive, taking into account all the circumstances of the case.

The court dismissed Ung's appeal against conviction and sentence, thereby affirming the original judgment of the lower court.

Orders