Regina v Chung

[2001] NSWCCA 484

CITATION:	REGINA v CHUNG [2001] NSWCCA 484
FILE NUMBER(S):	CCA 60322/01
HEARING DATE(S):	19 November 2001
JUDGMENT DATE:	19 November 2001
PARTIES :	Regina Wing Piew (Chris) Chung
JUDGMENT OF:	Spigelman CJ at 1; Sully J at 8; Greg James J at 9

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0178
LOWER COURT JUDICIAL OFFICER :	Kirkham DCJ

COUNSEL :	P Byrne SC/G Bashir (Appellant) W G Dawe QC (Crown)
SOLICITORS:	Walter Madden Jenkins (Appellent) S E O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - supply of prohibited drug - directions to jury - where trial judge gave directions with respect to failure of Appellant to give evidence that contravened the authority of RPS v The Queen (2000) 199 CLR 620 and Azzopardi v The Queen [2001] HCA 25, 75 ALJR 931.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
CASES CITED:	RPS v The Queen (2000) 199 CLR 620 Azzopardi v The Queen [2001] HCA 25; 75 ALJR 931
DECISION:	1. Leave to appeal out of time granted; 2. Appeal allowed; 3. New trial ordered.

60322/01
SPIGELMAN CJ
SULLY J
GREG JAMES J
Monday 19 November 2001

REGINA v Wing Piew (Chris) CHUNG

JUDGMENT

: The Appellant was indicted before his Honour Judge Kirkham at the Sydney District Court on one count, that he between 28 June 1993 and 11 November 1993, at Sydney, in the State of New South Wales, did supply a prohibited drug, namely heroin, in an amount not less than the large commercial quantity contrary to s25(1) of the Drug Misuse and Trafficking Act 1985.

2 He was sentenced on 17 April 1998 to imprisonment for life.

3 The appeal was brought out of time. Leave to appeal on an extension of time was required and should be given.

4 In the course of his Honour’s summing-up, his Honour made certain directions in accordance with the practice in this State at that time with respect to the failure of the Appellant to give evidence in the trial. This was of considerable significance because the principal evidence against the Defendant was given by the co-offender, Mr Houang.

5 In the course of his summing-up, his Honour said the following:

“In this case, in the present case the Crown asks you however when judging the value or the weight of the evidence which has been put forward by the Crown, particularly the evidence of Mr Houang, as establishing its case against the accused, to take into account the accused’s election not to deny or contradict matters about which he could have given direct evidence from his own personal knowledge. That is indeed a circumstance which you might consider in this case.
You may think that it is only common sense that in a situation where, as in this case, Houang and the accused are said to be directly involved in an alleged activity over a period of time, so that they are the two persons best able to give evidence of what happened, if anything, over that period of time, involving the accused and where the evidence of Houang is left undenied and uncontradicted by the accused, any doubts which may otherwise have been cast upon Houang’s evidence may more readily be discounted and Houang’s may more readily be accepted as the truth. That is the approach which the Crown asks you to adopt in this case in relation to Houang’s evidence that the accused supplied heroin over the relevant period as alleged.”

6 The High Court has subsequently, in RPS v The Queen (2000) 199 CLR 620 and also in Azzopardi v The Queen [2001] HCA 25; 75 ALJR 931 held that directions of that character ought not be made, save in particular circumstances. There is no suggestion that any such circumstances apply in the present case.

7 The evidence of Houang was central to the proceedings. The reinforcement given to Houang’s evidence by his Honour’s directions to the jury, in the part I quoted, was of significance in the case. It cannot be, and has not been, suggested by the Crown that there was not a miscarriage of justice by reason of the error in the summing-up. An error, which I hasten to say, suggests no criticism of his Honour by reason of the fact that his Honour acted in accordance with the practice in this State prior to the High Court’s decisions. Nevertheless, the effect is that a miscarriage of justice has occurred in the present case. Accordingly, the appeal should be upheld and there should be a retrial.

I agree.

I agree.

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