Cheih-Wei Lin v R

1. [1]

   HOEBEN CJ at CL: I agree with the orders proposed by Bellew J and his reasons. I also agree with the supplementary remarks of RA Hulme J. The orders of the Court will be those which have been proposed by Bellew J.

2. [2]

   R A HULME J: I agree with the orders proposed by Bellew J for the reasons his Honour has given.

3. [3]

   There are some further observations that I wish to make about the "capacity" of the District Court to deal with this trial as scheduled.

4. [4]

   As learned senior counsel for the respondent reminded us, there is no common law right to a speedy trial: Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23. But it does not reflect well on the criminal justice system in this State that a person arrested and refused bail in February 2014 is not brought to trial until almost two years later. And the prospect of delaying the trial further so that it does not occur until the applicant has been in custody for well in excess of two years is, in my view, untenable.

5. [5]

   It is notorious that delays in the disposal of criminal cases in the District Court have lengthened in the past year or two and that, unless additional resources are made available, they will continue to worsen.

6. [6]

   This is a concern, not only for the plight of accused persons (who are presumed to be innocent) who are held on remand, usually in crowded conditions of maximum security with limited or no access to work, programmes and education. It is a concern for the plight of victims of crime, especially crimes involving sexual assaults, and particularly in relation to children, for whom there is an obvious interest in having cases determined at the earliest time. It is also a concern for the viability of prosecutions which often rely upon the accuracy of memories of witnesses as to the events in question.

7. [7]

   The present trend of deterioration in the capacity of the District Court to finalise criminal cases in a timely fashion is a matter of considerable concern. In my respectful view, it is contrary to the public interest for it to be allowed to continue.

8. [8]

   BELLEW J: By notice filed on 22 September 2015 Chieh-Wei Lin (“the applicant”) seeks leave to appeal, pursuant to s. 5F of the Criminal Appeal Act 1912, against a decision of his Honour Judge Townsden delivered on 18 September 2015. On that day, pursuant to an application made by the Crown, his Honour ordered (inter alia) that the trial of the applicant and a number of co-offenders, which was due to commence in the District Court on 19 October 2015, be vacated.

FACTUAL BACKGROUND

1. [9]

   On 5 February 2014 the applicant and a number of other persons were arrested and charged with offences contrary to the Criminal Code 1995 (Cth) arising from the alleged importation into Australia of quantities of methylamphetamine between 23 November 2013 and 5 February 2014. The applicant was refused bail at the time of her arrest and has been in custody ever since. Committal proceedings were heard over four single days between September 2014 and March 2015. The matter came before the District Court for the first time on 10 April 2015 when a trial date of 19 October 2015 was set. At that time the Court was informed that the estimate of the trial was three weeks.

2. [10]

   On 15 September 2015 the Commonwealth Director of Public Prosecutions discontinued the proceedings brought against one of the alleged offenders, David John Allton (“Allton”). On the following day the Director signed a new Indictment, the effect of which was to include additional charges against the applicant and one of her co-offenders.

THE APPLICATION TO VACATE THE TRIAL

1. [11]

   On 17 September 2015 the Crown filed a notice of motion seeking an order that the trial be vacated. An affidavit in support of that motion, sworn by the solicitor with the carriage of the matter, stated that the estimated length of the trial was now six weeks. This was said to be because:

   1. (1)

      the Crown case would now take five weeks to complete;

   2. (2)

      interpreters were required for one or more of the accused;

   3. (3)

      the legal representatives for the applicant's co-accused had indicated that they would put the Crown to strict proof on all matters;

   4. (4)

      there were evidentiary issues to be resolved by way of a voir dire;

   5. (5)

      the Crown expected to call approximately 50 witnesses, a number of whom were either interstate or overseas;

   6. (6)

      the new indictment charged additional offences; and

   7. (7)

      a significant amount of further material had been served and disclosed since the committal proceedings.

2. [12]

   The affidavit went on to state that "the interests of justice would require that the trial date be vacated" because:

   1. (1)

      it was anticipated that Allton would now give evidence for the Crown;

   2. (2)

      the Crown was yet to serve tendency and coincidence notices;

   3. (3)

      the additional charges contained in the Indictment may give rise to a conflict which would necessitate separate counsel being briefed for each of the co-accused; and

   4. (4)

      it was expected that further evidentiary material would be obtained and served by investigating police between now and the trial (such material being described by the Crown in the course of the proceedings before the primary judge as "substantial").

THE PROCEEDINGS BEFORE THE PRIMARY JUDGE

1. [13]

   Counsel for the applicant opposed the Crown's application before the primary judge. He pointed out, with some force, that the applicant had been in custody for a period of 19 months and that the vacation of the trial date would be likely to result in her spending more than two years in custody awaiting trial.

2. [14]

   Counsel also informed the primary judge that when the matter was listed for trial in April, the applicant's solicitors had made arrangements for a witness to travel to Sydney from Taiwan to give evidence at the trial. Arrangements had also been made for members of the applicant's family to travel to Sydney for the trial. Counsel explained that all of those persons had purchased pre-paid air tickets which were non-refundable, such that they would be put to significant expense if the trial date was vacated.

3. [15]

   Counsel for the applicant also made it clear that at least for his part, he did not intend to put the Crown to strict proof. On the contrary, he expressed the general view that as far as the applicant was concerned, much of the Crown's evidence could be admitted by consent, although he acknowledged that this did not bind any of the co-accused.

4. [16]

   The solicitor representing the co-accused before the primary judge also opposed the application. He indicated that senior counsel briefed for the co-accused had turned his mind to the question of the possible conflict suggested by the Crown, and had concluded that there was no impediment in his representing all of the co-accused. He also indicated that on present indications, and based upon a conversation with the principal solicitor acting for the co-accused, he was of the view that the trial could still be completed within three weeks. He too pointed to the fact that the co-accused had been held in custody since February 2014, and he referred to the fact that at the present time trials were being listed to take place in the District Court in May and June of 2016. This, he submitted, gave rise to the distinct possibility that if the trial date was vacated. all of the accused would have spent more than two years in custody prior to trial.

THE REASONS OF THE PRIMARY JUDGE

1. [17]

   The primary judge firstly made reference to the submissions of counsel for the applicant in the following terms:

2. [18]

   His Honour went on to say:

SUBMISSIONS OF THE APPLICANT

1. [19]

   Counsel for the applicant accepted that the decision of the primary judge involved the exercise of a discretion attracting the application of the principles set out in House v R [1936] HCA 40; (1936) 55 CLR 499. It was submitted on behalf of the applicant that it was “notorious” that criminal trials often exceed their estimate, sometimes significantly so, and that the possibility of that occurring in the present case was not a proper reason to vacate the trial, and thus delay the proceedings for a further six to nine months.

2. [20]

   Counsel also pointed to the prejudice which would arise in light of the travel arrangements which had been made (on the basis of the original trial date) by the applicant's family, and by a witness to be called in her case.

3. [21]

   In response to some of the matters relied upon by the Crown before the primary judge, counsel for the applicant submitted that:

4. [22]

   It was submitted on behalf of the applicant that the primary judge had, in effect, subordinated the applicant's length of pre-trial custody to the convenience of the management, by the Crown, of its case. It was submitted that in all of these circumstances, the decision of the primary judge to vacate the trial was an error in principle which had precipitated an injustice to the applicant and her co-accused.

SUBMISSIONS OF THE CROWN

1. [23]

   Senior counsel for the Crown submitted that it was incumbent upon the applicant to point to an error in principle on the part of the primary judge in the exercise of his discretion: Pirrottina v R [1996] 88 A Crim R 220 at 223.

2. [24]

   Senior counsel emphasised that a decision to vacate a trial necessarily involved the exercise of a discretion, and that in the context of the present case, where no express error on the part of the primary judge was asserted by the applicant, the question for this Court was whether the decision to vacate the trial was so unreasonable, or so plainly unjust, that it could be inferred that the primary judge had failed to properly exercise the discretion which the law reposed in him: House at 505.

3. [25]

   It was submitted that the primary judge had taken into account all relevant factors and had exercised his discretion in a way which did not reflect error. It was submitted by senior counsel for the Crown that his Honour's conclusion reflected a proper balancing of the various competing interests.

CONSIDERATION

1. [26]

   It has long been accepted that a refusal of an application by an accused for an adjournment is amenable to appeal pursuant to section 5F(3) of the Criminal Appeal Act 1912: R v Yuill (1993) 69 A Crim R 450; R v Balic (1994) 75 A Crim R 509; R v Alexandroaia (1995) 81 A Crim R 286. Although the present case involves the granting of such an application by the Crown there is, for the purposes of section 5F, no material distinction between the two. It follows that the decision of the primary judge is an interlocutory judgment or order to which section 5F applies. The Crown did not contend otherwise.

2. [27]

   Although a number of submissions were put to him by the parties, it is evident from the reasons given by the primary judge that he exercised his discretion to vacate the trial date on one basis, namely, that the trial would now be likely to exceed its original estimate. In my view, it is evident from his Honour's reasons that he gave primacy to a suggested increase in the length of the trial and allowed that circumstance to prevail over what he himself described as the intolerable consequence that the applicant would be detained in custody for two years awaiting trial.

3. [28]

   Although it is not desirable from the point of view of the administration of any Court, the fact remains that it is not uncommon for trials to exceed their original estimate. Whether this will occur in the case of the applicant and her co-accused is a matter of conjecture. Certainly the solicitor appearing for the co-accused before the primary judge expressed some view that the trial could be completed within its original estimate. However even if the view were reached that the trial would exceed that estimate, a determination which allowed that circumstance to outweigh the obviously significant, and adverse, consequences to the applicant was, in my view, one which was unreasonable and plainly unjust. The primary judge's determination reflects a failure to properly exercise the discretion reposed in him.

4. [29]

   It is also important to bear in mind that the consequences, to the applicant, of the vacation of the trial date were not limited to having to spend a further significant period in custody. The consequences extended to the significant inconvenience and the expense to which members of her family, and a witness whom she apparently wishes to call to give evidence in her case, would be put if the trial was vacated. Although counsel addressed the primary judge in relation to those matters, his Honour made no reference to them in his reasons. They were, in my view, clearly relevant to the exercise of his discretion. I am left to conclude that they were not taken into account.

5. [30]

   It is also significant, in my view, that in exercising his discretion his Honour found that there was "simply no capacity" for the court to deal with a six week, as opposed to a three week, trial. This was, evidently, a circumstance to which his Honour had regard in exercising his discretion. Needless to say, an increase in the estimate of a trial has the capacity to affect the administration arrangements of the District Court to some degree. However, there was simply no evidence before his Honour to support the finding that the Court had "no capacity" to deal with the trial at all. That, in my view, is a further reflection of the failure on the part of the primary judge to properly exercise his discretion.

6. [31]

   For all of these reasons I am satisfied that error is established.

7. [32]

   Having vacated the trial his Honour made consequential orders requiring the service by the Crown of a tendency notice within 14 days and the service of "the remainder of the brief" within four weeks. I have already noted that the applicant was arrested in February 2014, some 19 months ago. The trial date of 19 October was set 6 months ago. A suggestion that the "remainder of the brief" is still to be served at this late stage is wholly unsatisfactory, as is the suggested service of a tendency notice. In view of the conclusions I have reached, I propose that the entirety of the orders made by the primary judge be vacated and that the matter be remitted to the District Court for the trial to commence on 19 October 2015. Whether the Crown should be permitted to rely upon material or notices which are yet to be served will be a matter for determination by the trial judge.

8. [33]

   For those reasons I propose the following orders: