REGINA v CHUNG [2001] NSWCCA 484

REGINA v CHUNG [2001] NSWCCA 484

The trial judge directed the jury that the Appellant's failure to deny or contradict matters within his personal knowledge could be taken into account in assessing and accepting the co-offender Houang's evidence. Subsequent High Court authority established that such directions should not be given except in particular circumstances, none of which applied. Because Houang's evidence was central and the directions significantly reinforced it, the error in the summing-up caused a miscarriage of justice, so the appeal was allowed and a retrial ordered.

Jurisdiction
Australia
Judgment Date
19 November 2001
Procedural Posture
Criminal Appeal Against Conviction for Supply of Prohibited Drug / Application for Leave to Appeal Out of Time and Appeal
Outcome
Leave to appeal out of time granted; appeal allowed; new trial ordered.
Legal Topics
['appeal Against Conviction' 'supply of Prohibited Drug' 'jury Directions' 'failure of Accused to Give Evidence' 'miscarriage of Justice']
['criminal Law'] ['appeal Against Conviction' 'supply of Prohibited Drug' 'jury Directions' 'failure of Accused to Give Evidence' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction for Supply of Prohibited Drug / Application for Leave to Appeal Out of Time and Appeal

Legal Issues

  1. 1 ['Whether leave to appeal out of time should be granted.' "Whether the trial judge's directions to the jury about the Appellant's failure to give evidence were erroneous in light of RPS v The Queen and Azzopardi v The Queen." 'Whether the erroneous directions caused a miscarriage of justice requiring the conviction to be set aside and a new trial ordered.']

Ratio Decidendi

The trial judge directed the jury that the Appellant's failure to deny or contradict matters within his personal knowledge could be taken into account in assessing and accepting the co-offender Houang's evidence. Subsequent High Court authority established that such directions should not be given except in particular circumstances, none of which applied. Because Houang's evidence was central and the directions significantly reinforced it, the error in the summing-up caused a miscarriage of justice, so the appeal was allowed and a retrial ordered.

Court Disposition

Leave to appeal out of time granted; appeal allowed; new trial ordered.

Orders

  • ['Leave to appeal out of time granted.' 'Appeal allowed.' 'New trial ordered.']