R v Minh CHEUN

Judgment 1SIMPSON J : I agree with Price J. 2PRICE J : The Crown appeals the sentence imposed upon the respondent in the District Court on 7 March 2008 on the ground that he without reasonable excuse did not co-operate with law enforcement agencies, as required by the undertaking made by him on 9 November 2007 pursuant to s 21E Crimes Act 1914 (Cth). 3The respondent had pleaded guilty to a single count of attempting to possess a commercial quantity of 3,4 methylenedioxy-methamphetamine (ecstasy) pursuant to ss 11.1(1) and 307.5(1) Criminal Code 1995 (Cth). 4The maximum penalty for such an offence is life imprisonment. Hulme SC DCJ (the sentencing judge) sentenced the respondent to imprisonment for 17 years 6 months with a non-parole period of 11 years. 5The respondent was sentenced with the benefit of a twenty per cent discount on sentence for past and future co-operation and the Crown contends that the respondent, without reasonable excuse, failed "in part" to co-operate in accordance with his signed undertaking. It is not the Crown case that the respondent has failed entirely to co-operate in accordance with the undertaking. The Crown accepts that the respondent in conformity with his undertaking conferred with the solicitor for the Commonwealth Director of Public Prosecutions and counsel briefed in respect of committal proceedings and gave evidence over three days in the Local Court. The respondent, however, before he re-commenced his testimony on the fourth day declined to answer further questions. The Crown contends that the respondent's refusal to continue answering questions was highly significant as it ultimately caused the complete failure of the prosecution case against two co-accused who had been arrested on an understanding that the respondent would comply with his undertakings. The Crown asks that the respondent's sentence be increased with regard to the 2 years 6 months which was allowed as a discount in respect of "future assistance". A discount of 10 per cent was specifically allowed by the sentencing judge for future co-operation. 6Section 21E(3) Crimes Act , relevantly, is as follows: "Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person's undertaking to co-operate with law enforcement agencies, the court hearing the appeal: (a) if it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking-must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and (b) if it is satisfied that the person has failed in part to co-operate in accordance with the undertaking-may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non-parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate." 7This Court has held on an appeal under s 21E Crimes Act that there is an onus on the Crown to satisfy the Court beyond reasonable doubt that the failure of an offender to co-operate in accordance with his undertaking was without reasonable excuse: R v YZ [1999] NSWCCA 263 at [20] per Sully J; R v Springer [2009] NSWCCA 144 at [45] per James J. No good reason was advanced by the Crown as to why this Court should not follow this line of authority. 8The respondent argues that the Crown cannot comply with its onus to satisfy this Court beyond reasonable doubt that his failure to cooperate, in accordance with his undertaking, was without reasonable excuse. The respondent says that he complied with his undertaking until it came to his notice that his mother's address in China had been disclosed to the co-offenders when his statement, which included her address, was served as part of the prosecution brief. He was fearful that his family members who resided at that address might be harmed if he continued to give evidence. He sought legal advice and eventually declined to give any further evidence. By failing to delete his mother's address from the statement which was served on the co-offenders, the respondent submits that the Crown failed to comply with rule 12 of the Local Courts (Criminal and Applications Procedure) Rule 2003 (repealed on 18 December 2009) which then applied to the committal proceedings. 9Rule 12(1) relevantly provided that a copy of a written statement served on an accused person in committal proceedings must not disclose the address of the person who made the statement or of any other living person unless the address is a materially relevant part of the evidence or a magistrate makes an order permitting the disclosure in the statement. The Crown does not submit that a magistrate made a disclosure order. Before venturing further, it is convenient to summarise the facts upon which the respondent was sentenced and the extent of the respondent's co-operation.

Matters of Evidence 29In an affidavit sworn 8 November 2010, the respondent states at par 12: "...when the matter resumed on 27 November 2009, I discovered that a statement I made in which I gave the addresses of family members in Canada and China in response to questions by the Australian Federal Police had been given to the defence lawyers. I was shocked by this discovery. I was assured by the Australian Federal Police when I answered their questions that my family members' addresses would not be disclosed to my co-accused. I cannot remember the precise words of the police interviewer but the assurance was to this effect. I declined to give further evidence on 27 November 2009 and instructed my legal representatives that I wanted the matter to be adjourned so that I could obtain legal advice. This was because I was very disturbed to find out that copies of statements I had previously made containing names and addresses of my family members in Canada and China were in the possession of the co-accused." and at par 24: "If I had known that the Australian Federal Police were going to give the lawyers for Ip and Huang my mother's address in China I would not have given the undertaking. I saw no reason for the Australian Federal Police to disclose my mother's address. I still fear that some harm may come to my mother and brother as a result of the statement I made at the trial of Ip and Huang." 30The respondent was required for cross-examination in this Court. His evidence on the topic of when he discovered that the defence had his statement included the following (T27 L14-27; T32 L39-50 - T 33 L1-10; T33 L32-40): "Q: What was it about that realisation that led you to decide to not continue to answer questions? A. INTERPRETER: Well, I attend the local - on various number of occasions and I was very cooperative in giving evidence on a number of days. I give a full day's evidence on the first day and then during the second, third and fourth I was not required. I just sit at the gaol underneath the magistrate - and then - but on the fifth occasion when the defence barrister start to cross-examine me holding my statement in his hand and cross-examining me bit by bit on my statement suddenly the thought of, my address will be on the statement and this idea suddenly came to me and I was so scared and I sweat all over and then I have to ask for an adjournment and then I went down to the cells and then think over and over and over and over again and then I asked for formal legal advice and after lengthy consideration then I decided to withdraw my giving of evidence. ... Q. Yes, but the significance is this, sir, that you didn't see somebody with the statement and discover on that day that the defence had your statement did you? A. INTERPRETER: Not true, not true. I remember that the not was shortly written before I decide to formally from the court that I refuse to give further evidence. I want to correct myself and actually I did indicate my reluctance to give evidence on the second-last occasion when I appear in the magistrate court. I did signal my disinclination to give any further evidence and after the second last occasion at the magistrate court, I went back to the cells - I went back to my gaol because my English was not very good so I asked some cellmates who wrote good English to help me to write out that note so that I can bring it to the court on the next occasion which is the last occasion when I went to the magistrate court for the committal proceedings and then on that day I intend to show to the magistrate that I don't want to give any further evidence. Q: So is it the fact that the assertion that you discovered that the defence had your statement was something that occurred on 27 November. That's wrong is it? A. INTERPRETER: Yes, that's wrong. I remember, that should be on the one prior occasion. I want to apologise for this mistake. ... Q: And now you say that it was on the second-last occasion that you realised and that you indicated your reluctance in the course of that day? A. INTERPRETER: Yeah, to put it in a nutshell or to clear things up, I think the thrust of the matter is that the prosecution divulge my mum's address to the other side, whether is on the last day or the second-last day is immaterial. I discovered that fact at some stage during the committal proceeding and I give it some lengthy thought, thought it over and over again, and I thought it's very, very endangering me and then I decided to tell the magistrate that I will not be giving any further evidence. That's the thrust of the matter." (underlining added) 31Mr Sutherland suggested to the respondent that his attitude to giving evidence changed not because he feared for his family but as he believed that he would not be transferred to Canada to serve the balance of his sentence until after he was no longer required to give evidence. The respondent had made an application on 21 July 2009 under s 16 International Transfer of Prisoners Act 1997 (Cth) to transfer to Canada to complete serving his sentence. 32The respondent rejected that suggestion and said that he knew he would not be considered for an international transfer until after all the trials were finished satisfactorily. 33The Crown submits that the first question to be determined was why the respondent stopped giving evidence in the committal proceedings. The Crown points to the respondent's reference to both the Canadian address and the address in China in his affidavit and to the inconsistencies in his evidence before this Court as matters impacting upon the respondent's credibility. The Crown argues that it was inconceivable that he did not know that he would be cross-examined on his statement. Furthermore, a reading of his statement would indicate that where he lived in China was known well before the address was detailed in the statement and that was the reason he succumbed to the entreaties of the co-offenders to join the criminal enterprise. The Crown contends that the Court would reject the respondent's explanation that he stopped giving evidence out of fear for the safety of his mother as her address had become known to defence counsel in Sydney. 34A close reading of the transcript of the committal hearing reveals that the respondent's statement of 19 June 2007 was shown to him by the Crown when he commenced his evidence on 15 June 2009 and there was a general reference to it in cross-examination on that day and on 20 November 2009 by one of the co-accuseds' counsel. The respondent, however, was not taken to any paragraphs of the statement by counsel until he was cross-examined at some length upon it on 24 November 2009. This supports the respondent's evidence in the passage underlined at [30] above that it was not until the defence barrister started to cross-examine "bit by bit" on his statement, that it occurred to him that the co-offenders had copies of the statements he had made containing his mother's address in China. When he was recalled for cross-examination on 27 November 2009, he told the magistrate that he was not going to give further evidence. 35Whilst there were inconsistencies in the respondent's testimony in this Court, it is hardly surprising given the extended period over which he gave evidence in the committal hearing that there was some imprecision as to when he first became aware that the co-offenders had his mother's address and he indicated a reluctance to continue his evidence. 36The Crown's suggested motive for the respondent's refusal to continue his evidence as he believed his application for a transfer to Canada would not be granted until he was no longer required to give evidence would only make sense if it was established that this requirement was brought to the respondent's attention between 24-27 November 2009 which the Crown failed to do. 37I do not find that the respondent's dismay in ascertaining that the Canadian address was included in the served statement detracts from his credibility. Although the lease had expired when he left Canada, the respondent's reluctance for his co-offenders to know any of his addresses is understandable. Federal Agent James in his affidavit at par 9 states that the applicant "had previously mentioned that he was concerned about the safety of his girlfriend in Canada and his mother and child in China." 38During oral evidence in this Court, Ms Peterson recalled that the respondent had been informed that he would be cross-examined at the committal hearing on the content of his statement. On the other hand, the respondent's evidence was that he knew that when he went to court, he would be questioned about his participation in the criminal enterprise but did not know that defence counsel would ask him questions "based on reading [his] statement". In any event, it seems that he was not informed that his mother's address would remain in the statement when it was served on the co-offenders. Ms Peterson testified that she did not turn her mind to excising that address from the statement prior to service. Federal Agent James gave evidence that he did not think anything about the address at the time it was disclosed. He, however, understood that the disclosure of the mother's address could be a cause of concern. Federal Agent Boyd agreed in cross-examination that when he saw the respondent in December 2009 he was a worried man who was very concerned that his family might be harmed. 39Whilst the respondent's statement of 19 June 2007 recounts that he was picked up by "Dave" nearby his home in China and that he was told by "Andrew" that Andrew knew that he had a daughter, a mother and where he lived, I am not persuaded that his co-offenders actually knew where his mother lived prior to service of the statement upon them. It was the respondent's evidence that he had not divulged his "exact address" to anyone and that Dave did not know his address. He believed that Andrew was "bluffing". 40I do not accede to the Crown's invitation to reject the respondent's evidence. The respondent had testified in the Local Court in accordance with his undertaking for three days and the only rational explanation for his disinclination to co-operate further was his discovery that the address where his family members lived had been disclosed and he feared for their safety. I accept the respondent's explanation for his refusal to give further evidence.

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