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…

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 Regina v Chung

Details

AGLC: Regina v Chung [2001] NSWCCA 484
Case: [2001] NSWCCA 484
Decision Date: 19 November 2001

CaseChat Overview and Summary

Regina v Chung was a criminal case that reached the court following the conviction of the Appellant for the supply of a prohibited drug. The Appellant sought to appeal against his conviction, focusing on the trial judge's directions to the jury regarding the Appellant's decision not to give evidence. The case was heard in the relevant appellate court, which had to consider whether the trial judge's directions contravened established legal principles.

The primary legal issue before the court was whether the trial judge's directions to the jury concerning the Appellant's failure to give evidence complied with the requirements set out in the cases of RPS v The Queen and Azzopardi v The Queen. Specifically, the court had to determine if the trial judge's directions correctly reflected the legal principle that no adverse inference should be drawn from a defendant's decision not to testify, and that the jury should not speculate on the reasons for the defendant's silence.

The court found that the trial judge's directions to the jury did indeed contravene the legal principles established in RPS v The Queen and Azzopardi v The Queen. The court held that the directions allowed the jury to consider the Appellant's silence as a factor in assessing his guilt, which was contrary to the legal precedent that required the jury to disregard the reasons for the Appellant's silence. This misdirection was deemed to be a significant error, as it potentially influenced the jury's verdict. Consequently, the court allowed the appeal and quashed the Appellant's conviction.

Orders