Cheung v The Queen [2001] HCA 67

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

YING-LUN (GARY) CHEUNG APPELLANT

AND

THE QUEEN RESPONDENT

Cheung v The Queen

[2001] HCA 67

22 November 2001

S200/2000

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation:

A Scrivener QC with J I Doris for the appellant (instructed by Stephen Hodges)

J V Agius SC with S M McNaughton for the respondent (instructed by Director of Public Prosecutions (Commonwealth))

Intervener:

D M J Bennett QC, Solicitor-General of the Commonwealth with C Traill, J S Stellios and S A Lovett intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor).

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Cheung v The Queen

Criminal law – Sentencing – Principles and practice – Division of functions between judge and jury – Suggested alternative factual bases for verdict and sentence – Appellant convicted of being knowingly concerned in the importation of a commercial quantity of heroin – Duty of sentencing judge to determine extent of appellant's culpability consistently with verdict of jury – Whether sentencing judge obliged to fix sentence on view of evidence most favourable to appellant – Relevance of manner in which charges framed in indictment – Relevance of right to trial by jury contained in s 80 of the Constitution.

Constitutional law (Cth) – Jury trial of indictable federal offence – Determination of factual basis for jury verdict of guilty – Whether s 80 of the Constitution relevant to the framing of charges in the indictment where alternative factual bases for the verdict exist – Whether right to trial by jury relevant to resolution of applicable basis of verdict for the purpose of sentencing the prisoner.