Regina v Khoo

[2000] NSWCCA 500

CITATION:	Regina v Khoo [2000] NSWCCA 500
FILE NUMBER(S):	CCA 60170/00
HEARING DATE(S):	29/11/00
JUDGMENT DATE:	29 November 2000
PARTIES :	James Ching Boon Khoo (Appellant) Regina (Respondent)
JUDGMENT OF:	Fitzgerald JA at 1; Simpson J at 25; Howie J at 26

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/1050
LOWER COURT JUDICIAL OFFICER :	Payne DCJ

COUNSEL :	G D Wendler (Appellant) R J Bromwich (Crown)
SOLICITORS:	Van Houten (Appellant) P Musgrave - Solicitor for Commonwealth Director of Public Prosecutions (Crown)
LEGISLATION CITED:	Crimes Act 1900 Bounty (Computers) Act 1984 Jury Act 1997
DECISION:	Appeal dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60170/00
DC 99/11/1050

FITZGERALD JA
SIMPSON J
HOWIE J

WEDNESDAY 29 NOVEMBER 2000

REGINA v KHOO

JUDGMENT

1   FITZGERALD JA: The appellant has appealed against his conviction in the District Court at Sydney on 2 March 2000 of an offence against s73(2) of the Crimes Act 1914 (Cwlth) between 20 October and 3 November 1995. The indictment on which the appellant was convicted charged him with asking Unisys Australia Limited to employ his brother, Peter Khoo, a consultant retained by SMJ Management Services Pty Ltd, on an understanding that the exercise by the appellant of his duty as a Commonwealth Officer would be affected. 2 Subs 73 (2) of the Crimes Act provides:

“A Commonwealth officer who asks for any benefit of any kind for any other person, on an understanding that the exercise by him of his duty as a Commonwealth officer will, in any manner, be influenced or affected, is guilty of an offence.
The maximum penalty is imprisonment for 2 years.”

3   At the time of the alleged offence, the Commonwealth operated an industry assistance scheme to encourage research and development in the computer industry in Australia. Bounties were paid under the Bounty (Computers) Act 1984 (Cwlth). Eligibility for a bounty was determined by reference to certain types of expenditure by computer companies in Australia. Because of the complexity of the eligibility criteria, it was commonplace for companies claiming bounty payments to engage consultants to assist in making the claims. 4   The appellant was a Commonwealth Officer working in the computer bounty section of the Australian Customs Service. SMJ was a computer bounty consultant company. The appellant’s brother, Peter Khoo, was a consultant retained by SMJ. 5   Unisys informed the appellant that it was unhappy with its computer bounty consultant's performance and inquired whether he could recommend a different consultant. A meeting was arranged at the North Sydney offices of Unisys. On 31 October 1995, the appellant and his brother met the financial controller of Unisys, Gregory Shearer, its Tax and Treasury Manager, Suzanne Young-Dyster, and a Unisys administrator, Naomi Crump. The meeting was later reported to the Customs Service by an employee of Unisys. 6   A Customs officer, Ben Parker, interviewed Mr Shearer and Ms Crump together on 20 March 1996 and subsequently interviewed Ms Young-Dyster on 19 April 1996. During that interview, Ms Young-Dyster was shown a copy of Mr Shearer's draft Statement. Subsequently the appellant was interviewed. 7   Following a voir dire after the jury was empanelled, the trial judge ruled that the evidence of the Unisys employees was admissible but excluded all parts of the record of interview of the appellant to which he objected. No complaint was made by the appellant in this Court of these rulings by the trial Judge. 8   In summary Mr Shearer told Mr Parker that the appellant “… was basically suggesting to me if you deal with Peter your claims will be expedited.” In his evidence in chief at the appellant's trial, Mr Shearer stated that the appellant had said that “… our claims could be expedited if we use this particular consultant.” In cross-examination Mr Shearer said:

"He (meaning the appellant) said that if we used this particular consultant we would expect a turn around in two weeks. He also said that this claim would more than likely be approved in-house. And they are really the only specific things I recall."

9 Ms Young-Dyster was unable to remember much of what she told Mr Parker. Her evidence concerning the meeting at Unisys North Sydney premises was that the appellant said “.. if you use SMJ Management … any problems with the claims could be ironed out prior to them being lodged and that would mean that our claim could be expedited.” When Mr Shearer asked how quickly Unisys could get paid the appellant replied "2 weeks." 10 Ms Crump gave evidence the appellant said “… if you deal with Peter, your claim will be expedited.” According to Ms Crump's evidence the appellant said "It would be technically approved in-house. It wouldn't be sent anywhere. If there were problems they could be ironed out and you could have your money straight away." When Mr Shearer asked how long it would take Unisys to get paid, the appellant replied two weeks. 11 No complaint was made by the appellant of the directions given by the trial judge to the Jury. 12 The appellant submitted that the prosecution evidence was insufficient to establish his guilt beyond reasonable doubt. Although variously expressed these submissions were all to the effect that the appellant's statements at the meeting, or the version of those statements on which the jury should have acted, did not indicate that he would benefit Unisys as required by s 63 (2) of the Crimes Act, but only that Unisys could, in the sense of might, benefit for whatever reason if it employed the appellant's brother as its computer bounty consultant. 13   Contrary to what was implicit in the appellant's submissions, the jury was not required to choose between the different Unisys' witnesses, or the different versions which they, or any of them, gave as to what was said at the meeting. The jury was entitled to consider all the evidence of what was said and to decide whether it was satisfied beyond reasonable doubt that the appellant had indicated that he would benefit Unisys if it employed his brother. It was not submitted that the jury should have had a reasonable doubt concerning the appellant's intention to act in the manner which he indicated. 14   It was open to a reasonable jury, considering the evidence rationally, to convict the appellant. The evidence does not leave me with a reasonable doubt as to the appellant's guilt or indicate a significant possibility that an innocent person has been convicted. 15   The other ground of appeal which was pressed related to the behaviour of one of the jurors. The appellant submitted that he has not had the trial by jury to which he is entitled by s 80 of the Commonwealth of Australia Constitution and the Jury Act (1997) (NSW). 16   After the jury was empanelled it was sent out while the trial judge decided whether to conduct a voir dire. When her Honour decided to do so, the court officer was asked to inform the jurors they could go home after their lunch, to return at 2 pm the next day. As a result of something which she had been told by the court officer, the trial judge requested him to repeat what had happened in respect of a particular juror. The transcript records the following statement by the court officer:

"I don't know if members of counsel are aware, as I was taking the members of the jury out the door one particular juror said to me 'how can you get out of this shit', he does not want to be here, he doesn't know why he's here. When we proceeded upstairs I had to ask the same jury member to calm down, he walked into the lunch room and said he's not eating this shit, he wants nothing to do with it. So that's the situation with one particular member of the jury."

17   There was no application for discharge of the jury or the "particular juror" then or at any other time. Obviously, and for good reason, the remark attributed by the "particular juror" that "he doesn't know why he's here" was not interpreted by any of the persons present as an indication that the juror could not or did not comprehend his function and obligations. 18   The "particular juror" had his feet up and chewed gum at the trial, but otherwise caused no difficulty until after the trial judge had commenced her summing up. 19   Attention was drawn by counsel for the appellant to questions sent by the jury during a break which the trial judge took in the course of her summing up. There is nothing to indicate that any of those questions related to the "particular juror" or that he or any of the other jurors was behaving inappropriately or unable to comprehend his or her function in duties. 20   On Wednesday 1 March 2000 there was brief evidence from a character witness for the appellant, legal argument in the absence of the jury, addresses by counsel and part of the summing up. The "particular juror" was again difficult outside the court. The material portion of the transcript for the morning of Thursday 2 March is as follows:

"HER HONOUR: Apparently yesterday afternoon, there was quite a bit of difficulty that's been informed to me by the Court Officer. The particular fellow, who was causing problems before, was apparently particularly aggressive, quite aggressive, and said certain things and was swearing and whatever, but I doubt that either of you would seek a discharge at this critical point?

CROWN PROSECUTOR: No, your Honour.

HER HONOUR: He said certain things that I can get from the officer if you want, what he said. It was reported secondhand to me, but it was in the heat of the moment. But if you want to hear exactly what was said, I'll allow that to be done.

CROWN PROSECUTOR: Unless there's cause to believe that it goes to the point where someone is not going to follow their solemn oath, in company with their eleven other jurors.

HER HONOUR: I think I'd better tell you, as best you can recall precisely what was said.

DOWD: Word for word, your Honour?

CROWN PROSECUTOR: I'm not timid about language, if there's swearing. If there's swearing, we probably should have words to the effect of, dare I say it.

DOWD: Do we need to?

CROWN PROSECUTOR: I don't specifically seek it.

HER HONOUR: I've been told that he swore and he said something about that he never believes the police, he didn't want to be here. I said to Melinda, my associate, what's the police got to do with it, there are no police in this case. I never believe the police. Was that it?

COURT OFFICER: It was - no, all police officers are shit, your Honour, and the law is shit and this place is shit and full of f'ing c's and I don't want to be here. That's what was--

CROWN PROSECUTOR: Are you sure he wasn't referring to me, your Honour?

COURT OFFICER: I think he was.

HER HONOUR: So that was what was said.

DOWD: It sounds like it crosses both sides of the bar table.

CROWN PROSECUTOR: I realise there's a police element in it, but if this was a case that turned on police evidence directly--

HER HONOUR: Then I would've been very concerned, I would've (sic) concerned from the beginning.

CROWN PROSECUTOR: I mean, I am a bit concerned that there is a police component to the witnesses' evidence but nonetheless it is these witnesses.

HER HONOUR: But we haven't even had a police officer in this case, we haven't even had an investigator.

COURT OFFICER: I think it's just police in general, it was just contempt for police officers in general, not actually that they're involved in this case.

CROWN PROSECUTOR: I'll have to try and memorise his face in case I have him for another trial.

HER HONOUR: The officer will just have to continue with his duties, but as I explained, what we have to be concerned about is the cost of this trial thus far.

CROWN PROSECUTOR: I don't seek a discharge.

HER HONOUR: I should say I've been very tolerant. He's been chewing gum, he's had his feet up and for the better good, not a word's been said to the man. I just want to say that. He's had a lot of leeway."

21   The jury was recalled and the summing up continued. In the course of the summing up the jury was clearly reminded of its function and duties. The summing up concluded and the jury retired to consider the verdict. The jury asked several questions in the course of its deliberations and was given answers. In due course it returned a verdict that the appellant was guilty of the offence charged. 22   The appellant submits that the actions of the "particular juror" demonstrated that he was not indifferent to all considerations other than the evidence but “was more concerned with getting out of the trial and/or subverting the appellant's right to a fair trial” and that “.. in all the circumstances … a miscarriage of justice has occurred.” These submissions were elaborated upon in the appellant's written submissions which contain the following passage at 3.3:

"Objectively, there has been a miscarriage of justice because some or all of the jurors may have been so distracted or disrupted by the behaviour of the rogue juror as to have not given a true verdict. Alternatively, the rogue juror may have been so disruptive that some jurors may have felt pressured to reach a verdict of guilty in order to quit the trial quickly.

Further, the rogue juror may have voted for conviction in order to get out of jury service as quickly as possible. The appellant submits that the behaviour of the rogue juror destabilised the trial process to the extent that there can be no confidence in the integrity of the verdict".

23   In my opinion the matters raised by the appellant fail to provide an adequate foundation for the conclusions which he asks the Court to draw. There is no sufficient basis for a conclusion that the "particular juror" did not comply with his oath to give a true verdict according to the evidence under s 72 A of the Jury Act or that other jurors' deliberations were adversely affected by his behaviour. 24   I am not persuaded that there is reasonable doubt as to the appellant's guilt or there was a significant possibility that an innocent person has been convicted. Accordingly, I am satisfied that there has been no miscarriage of justice and I would dismiss the appeal. 25   SIMPSON J: I agree. 26   HOWIE J: I agree. 27   FITZGERALD JA: The appeal is dismissed.

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