Lau v R [2014] NSWCCA 179

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lau v R [2014] NSWCCA 179 Hearing dates: 02/07/2014 Decision date: 12 September 2014 Before: Hoeben CJ at CL at [1] Harrison J at [130] McCallum J at [131] Decision: (i) An extension of time be granted within which the applicant can seek leave to appeal against conviction. (ii) Grant leave to the applicant to appeal against conviction. (iii) Dismiss the appeal against conviction. (iv) In relation to the application for leave to appeal against sentence, grant leave to appeal. (v) Allow the appeal against sentence. (vi) Quash the sentence imposed on the applicant by Flannery DCJ on 10 May 2012. (vii) In lieu thereof the applicant is re-sentenced to a term of imprisonment with a non-parole period of 6 years, commencing 30 October 2010 and expiring 29 October 2016, with a balance of term of 3 years expiring 29 October 2019. Catchwords: CRIMINAL LAW - CONVICTION APPEAL - attempting to possess a commercial quantity of an unlawfully imported border control drug - 102 kilograms of pure heroin - whether a miscarriage of justice because of lack of qualifications of expert interpreter called in Crown case - whether verdict of jury unreasonable or could not be supported by the evidence - whether evidence as to flight properly admitted - evidence of Crown expert not misleading - differences in interpretation between Crown and defence experts not of significance in conduct of trial - differences in interpretation adequately explained by differences in audio equipment - strong circumstantial Crown case - on whole of the evidence open to the jury to be satisfied beyond reasonable doubt as to guilt - evidence of flight properly admitted - no breach of s137 of the Evidence Act 1995 in admitting evidence of flight - conviction appeal dismissed - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - whether principle of parity properly taken into account - no significant difference in level of criminality between applicant and co-offender - differences in subjective case of applicant and co-offender - sentence of co-offender manifestly inadequate - parity principle not properly applied - need for applicant to be re-sentenced. Legislation Cited: Criminal Code (Cth) - ss 11.1(1), 307.5(1) Evidence Act 1995 - s79,s135, s137 Cases Cited: DJS v R; NS v R [2009] NSWCCA at [8], [11], [55] - [56], [135] and [136] Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 M v R [1994] HCA 63; 181 CLR 487 MFA v R [2002] HCA 53; 213 CLR 606 R v Burton [2013] NSWCCA 335 at [161] - [171] R v Cook [2004] NSWCCA 52 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [60], [64], [74] R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [2], [42], [86] - [87], [171], [175] Ristevski v R [2007] NSWCCA 87 SKA v R [2011] HCA 13; 243 CLR Category: Principal judgment Parties: Nam Leung Lau - Appellant Regina - Respondent Crown Representation: Counsel: Mr LP Robberds QC - Appellant Mr P McGuire - Respondent Crown Solicitors: Jeffreys Lawyers - Appellant Commonwealth Director of Public Prosecutions - Respondent Crown File Number(s): 2010/360999 Decision under appeal Date of Decision: 2012-05-10 00:00:00 Before: Flannery DCJ File Number(s): 2010/360999