R v Yau

Case [2017] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Case Stated)

Question of Law Reserved NO 1 OF 2016

R v YAU

[2017] SASCFC 4

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Parker and The Honourable Justice Doyle)

10 February 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IMPORT-EXPORT OFFENCES

EVIDENCE - ADDUCING EVIDENCE - COURSE OF EVIDENCE - EVIDENCE BEFORE TRIAL - LETTER OF REQUEST - REQUESTS BY FOREIGN STATES OR COURTS

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

The defendant was charged with attempting to import a commercial quantity of methamphetamine. The alleged offending related to a parcel delivered to an Adelaide Post Office address that had been intercepted at Hong Kong International Airport. The prosecution proposed to rely at trial upon statements of six customs officers involved in the interception as to the chain of custody of the parcel and its contents. The prosecution proposed to adduce the statements as foreign material admissible under s 24 of the Foreign Evidence Act 1994 (Cth). Shortly before the trial was due to commence, the defendant brought an application seeking an exercise of the trial judge’s discretion to exclude this evidence under s 25 of that Act. The trial judge acceded to the application and excluded the evidence. The prosecution thereafter tendered no evidence at trial and the defendant was acquitted.

On the application of the Commonwealth Director of Public Prospection, the trial judge reserved the following question for consideration to the Full Court under s 350 of the Criminal Law Consolidation Act 1935 (SA):

“Was I correct in exercising my discretion to exclude the Hong Kong evidence under s 25 of the Foreign Evidence Act?”

Held per Doyle J (Parker J agreeing):

1.       In a case where the question relates to the exercise of a discretion that has already been the subject of determination by the trial judge, it will generally be appropriate that the question be posed in terms whether the discretion has been “properly exercised”.  In the present context, there is no difference between whether a discretion has been "properly" or "correctly" exercised. In answering a question  posed in these terms, the Full Court’s approach will be governed by the principles of appellate restraint in House v The King (at [138], [177]-[179]).

2. Consideration of the circumstances relevant to the exercise of the court’s discretion to exclude evidence under s 25 of the Act (at [224]-[235]).

3.       The evidence in question was not otherwise available (at [224]) and was highly probative (at [226]). The defendant identified a number of factual issues which, while not likely to have been of great moment, could have been the subject of legitimate cross-examination (at [230]). While some expense, delay and prejudice to the prosecution could be inferred from exclusion of the evidence, the…

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R v Yau [2017] SASCFC 4
Case
[2017] SASCFC 4
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CaseChat Overview and Summary

This matter came before the Full Court of the Supreme Court of South Australia by way of a case stated, concerning a criminal appeal by the applicant, R v Yau. The dispute centred on the admissibility of foreign material, specifically witness statements from Hong Kong Customs officers, in a drug importation trial.

The legal issue before the court was whether the trial judge erred in exercising their discretion under section 25 of the *Foreign Evidence Act* to exclude the statements of the Hong Kong Customs officers. This required the court to consider whether the judge's decision was vitiated by a failure to properly apply the principles established in *House v The King*, particularly in relation to the separate consideration of each officer's testimony and the exploration of alternative means to adduce the evidence.

The Full Court reasoned that the trial judge's exercise of discretion under section 25 was flawed. The court held that the judge failed to consider the discretion separately in relation to each individual Customs officer's statement. Furthermore, the judge did not adequately inquire into or make findings about what steps could have been taken to adduce the evidence by alternative means, nor the potential delay and expense associated with such alternatives, if each affirmation were excluded.

Consequently, the court concluded that the exercise of the discretion was vitiated by these failures. The question reserved was answered in the affirmative, indicating that the trial judge's exclusion of the Hong Kong statements was an error.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, the question reserved should be understood as asking:Did the exercise of the discretion by the Judge involve error in accordance with the principles identified by the High Court in House v The King[2]?and the answer to the question should be:The exercise of the discretion was vitiated by the failure of the Judge to consider the exercise of the discretion under section 25 separately by reference to each individual Customs officer or to inquire into and make findings about what steps could or would be taken to adduce the evidence by alternative means and with what delay and at what expense if each affirmation were excluded. [2] (1936) 55 CLR 499.Background On 17 June 2014, a carton was posted at Kwong Wa Street Post Office in Hong Kong. The sender was shown as Boey Chung of an address in Hong Kong and the addressee was shown as Hugo Yu, Parcel Locker 1003101762, 37 Rundle Street, Kent Town, South Australia. The parcel was dispatched by Hong Kong Post to the Air Mail Centre at Hong Kong International Airport. In June 2014, Lau Ka-kit (Mr Lau), Lam Hung-in, Chong Ying-lung and Chan Kwok-leung were employed as Hong Kong Customs officers at Hong Kong International Airport, based in the Airmail Examination Unit. On 18 June 2014, Mr Lau prepared and signed a Postal Package Examination Report in respect of the carton. He recorded its Postal Packet No as CP894806007HK. He recorded that the examination took place between 10.00 and 10.20 am and the contents included “suspected methamphetamine approx 1.015 kg”. The Postal Package Examination Report was countersigned by Lau Kwok-leung of Hong Kong Post. On 20 June 2014, Mr Lau prepared and signed a witness statement. Mr Lau said that on 18 June 2014 around 10:00 he examined postal package CP894806007HK. He opened the carton and found two pairs of pants and a T-shirt. He opened the T-shirt and found a white grained substance stored in two transparent zip-lock bags. He undertook a carbonium ions test and a drug testing chemical test of the white grained substance, which suggested that it was ice. He listed the contents of the carton and numbered them from P1 – which he described as “suspected methamphetamine contained in 2 zip lock bags - 1.015 kilogram” – through to P5 – being some carbon paper. He numbered the carton as P6 and the Postal Package Examination Report as P7. At around 16:20, he assigned the package to Customs officer Lin Hong-yuen (CO 13148). On 20 June 2014, Lau Kwok-keung (of Hong Kong Post) prepared and signed a witness statement. Lau Kwok-keung said that on 18 June 2014 at around 10:00 he witnessed the examination of postal package CP894806007HK by Mr Lau. He corroborated what Mr Lau saw when he opened the package. He countersigned the Postal Package Examination Report. On 23 June 2014, Lam Hung-in (CO 13148) prepared and signed a witness statement. Mr Lam said that on 18 June 2014 at around 16:20 he received at the Customs detention facility (G53) a package from Mr Lau containing seven items which he listed in the same terms as in Mr Lau’s statement. He stored them in the Customs detention facility (G53) until around 22:00, when he placed them in the care of Chong Ying-lung (CO 1002).

Evidence

Evidence Before The Court

Division 3 of Part 3 addresses the use of foreign material. Section 24 provides:24 Foreign material may be adduced as evidence(1)Subject to this section, foreign material may be adduced in a proceeding to which this Part applies.(2) The foreign material is not to be adduced as evidence if:(a) it appears to the court’s satisfaction at the hearing of the proceeding that the person who gave the testimony concerned is in Australia and is able to attend the hearing; or(b) the evidence would not have been admissible had it been adduced from the person at the hearing.(3) Paragraph (2)(b) does not apply if:(a) the foreign material is a business record; and(b) the only reason why the evidence would not have been admissible had it been adduced from the person at the hearing is that an Australian law relating to hearsay evidence (however described) would have applied to the evidence.(4)For the purpose of determining whether foreign material is a business record, and may be adduced as evidence, the court may:(a) examine the foreign material; and(b) draw any reasonable inference from the form and contents of the foreign material as well as from any other matters from which inferences may properly be drawn. Section 25 of the Act provides:Discretion to prevent foreign material being adduced—general (1)The court may direct that foreign material not be adduced as evidence if it appears to the court's satisfaction that, having regard to the interests of the parties to the proceeding, justice would be better served if the foreign material were not adduced as evidence. (2)Without limiting the matters that the court may take into account in deciding whether to give such a direction, it must take into account: (a) the extent to which the foreign material provides evidence that would not otherwise be available; and (b) the probative value of the foreign material with respect to any issue that is likely to be determined in the proceeding; and (c) the extent to which statements contained in the foreign material could, at the time they were made, be challenged by questioning the persons who made them; and (d) whether exclusion of the foreign material would cause undue expense or delay; and (e) whether exclusion of the foreign material would unfairly prejudice any party to the proceeding. Several observations should be made about section 25. First, the onus of proof and persuasion lies on the party objecting to the adducing of the foreign material in evidence. Secondly, the five specific matters listed in subsection (2) are not exhaustive of the matters to be taken into account. Thirdly, the ultimate criterion is whether justice is better served by the admission or non-admission of the foreign material, having regard to the interests of the parties. The essential task of the court is to weigh those factors supporting service of justice by admission having regard to the interests of the parties and in particular the party seeking to adduce the evidence, against those factors supporting service of justice by non-admission having regard to the interests of the parties and in particular the party opposing admission of the evidence. This involves an instinctive synthesis of the type used in sentencing. It does not involve giving mathematical or quantitative weight to individual factors.

Decision

Reasons for decision

In summary, and bearing in mind the breadth of the discretion under s 25, error of the type required by House v The King has not been established. To the extent that these reasons suggest that I would have attached less weight to the significance of the factual issues and the consequential entrenchment upon the defendant’s ordinary right of cross-examination than the trial judge did, and more weight to the prosecution’s failure to establish the nature and extent of any prejudice beyond a short adjournment of the trial, that is not sufficient to establish error of the type required by House v The King. I am not satisfied that the trial judge made any material error of fact or principle, or overlooked any relevant consideration. Nor am I satisfied, bearing in mind the breadth of the discretion, that the trial judge’s exercise of the discretion was plainly wrong, in the sense of it being a decision that no reasonable trial judge could properly have reached. Conclusion The trial judge did not err in excluding the Hong Kong statements under s 25 of the Foreign Evidence Act. The question reserved by way of case stated for consideration by this Court should be answered “yes”.

Ratio Decidendi

Legal Principle Established

Ninthly, in assessing the prejudice to a person as a result of admission of foreign material without cross-examination of the witness at trial, an important factor will be the opportunity that the person had to cross-examine the person when his or her testimony was originally given. In R v Reid,[14] testimony by five United States witnesses was admitted under the Act. The testimony was taken in New York in question and answer form, recorded audio visually and a transcript taken. The Director offered to permit the defendant to cross-examine the witnesses in New York and offered to pay the costs of his solicitor and counsel for this purpose, although agreement was not reached on the rates to be paid. The Victorian Court of Appeal held that the trial judge did not err in declining to exclude the evidence and that the defendant was afforded an adequate opportunity to cross-examine on the statements contained in the foreign material at the time they were made within the meaning of section 25(2)(c). In R v Marchando,[15] a ruling was made by the trial Judge that testimony by a United States witness would be admitted under the Act. The testimony was taken in question and answer form, via an audio visual link. Counsel for both the Director and the defendant appeared in Sydney and questioned the witness. The defendant sought to withdraw his plea of guilty following this ruling on the ground that the Judge should have rejected the evidence under section 25. The New South Wales Court of Appeal upheld the ruling refusing to allow the defendant to withdraw his guilty plea. These types of circumstances are very different to those in which there is no opportunity to cross-examine the person at the time when the testimony is given.[14] [1999] VSCA 98, [1999] 2 VR 605.[15] [2000] NSWCCA 8, (2000) 110 A Crim R 337.Separate consideration in respect of each witness During the argument on the voir dire, counsel for Mr Yau contended that there were different deficiencies and/or discrepancies in relation to each of the six witness statements by reason of which Mr Yau should be entitled to cross-examine the deponents to the affirmations. Sections 24 and 25 of the Act refer and apply to the “testimony of a person”. A court is required to assess the criteria for admissibility under section 24(2)(a) and (b) in respect of the testimony of each individual witness separately. A court is required to engage in the weighing process mandated by section 25 in respect of the testimony of each individual witness separately. The Judge expressed the formal ruling as a single ruling declining to admit “the Hong Kong statements. In the Judge’s reasons for the ruling, the Judge treated the question of admission as all or nothing. The Judge did not refer to the statement of any one Customs officer or to any consideration specific to any one Customs officer. Although the Judge referred to inconsistencies identified by Mr Yau’s counsel and those inconsistencies varied according to the individual Customs officer, the Judge did not identify the inconsistencies his Honour found existed by reference to one Customs officer or otherwise.