Sun v R [2023] NSWCCA 147

Sun v R [2023] NSWCCA 147

A majority (Button J and Hamill J) held that s 53B(d) only authorises the discharge of an individual juror for reasons affecting that juror personally and does not extend to reasons affecting all jurors equally. However, the error in this case did not result in a substantial miscarriage of justice because the jury was randomly chosen from eligible persons and the evidence against the applicant was strong; thus, the proviso to s 6(1) applied and the conviction was upheld. The sentencing grounds of appeal were also rejected; the sentencing judge did not err in his approach to COVID-19 hardship, mental health, vulnerability, double punishment, commencement of sentence, or the proceeds order.

Parties
Applicant: Young Hoon Sun; Respondent: Crown
Jurisdiction
Australia
Judgment Date
21 June 2023
Procedural Posture
Criminal Appeal / Court of Criminal Appeal; Appeal Against Conviction and Sentence
Outcome
Appeal against conviction and sentence dismissed; leave to appeal granted if necessary.
Legal Topics
Jury Discharge, Statutory Interpretation, Drug Offences, Sentencing Appeals, Application of Proviso in Criminal Appeals
Criminal Law Jury Discharge Statutory Interpretation Drug Offences Sentencing Appeals Application of Proviso in Criminal Appeals

Case Brief

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Parties

Young Hoon Sun

Applicant

Crown

Respondent

Procedural Posture

Criminal Appeal / Court of Criminal Appeal; Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the trial judge was empowered under s 53B(d) Jury Act 1977 (NSW) to discharge three jurors for reasons not pertaining to them individually
  2. 2 Whether any error in discharging jurors could be saved by the proviso to s 6(1) Criminal Appeal Act 1912 (NSW)
  3. 3 Whether sentencing errors occurred, including in recognition of pandemic hardship, mental health, vulnerability, double punishment, commencement of sentence, and proceeds order

Ratio Decidendi

A majority (Button J and Hamill J) held that s 53B(d) only authorises the discharge of an individual juror for reasons affecting that juror personally and does not extend to reasons affecting all jurors equally. However, the error in this case did not result in a substantial miscarriage of justice because the jury was randomly chosen from eligible persons and the evidence against the applicant was strong; thus, the proviso to s 6(1) applied and the conviction was upheld. The sentencing grounds of appeal were also rejected; the sentencing judge did not err in his approach to COVID-19 hardship, mental health, vulnerability, double punishment, commencement of sentence, or the proceeds order.

Court Disposition

Appeal against conviction and sentence dismissed; leave to appeal granted if necessary.

Orders

  • If necessary, grant leave to appeal against conviction.
  • Dismiss the appeal against conviction.