Chin Chen Li (a pseudonym)[1] v The Queen - [2020] VSCA 168

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0267

CHIN CHEN LI (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	NIALL, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 June 2020
DATE OF JUDGMENT:	23 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 168
JUDGMENT APPEALED FROM:	DPP v Li (Unreported, County Court of Victoria, Judge McInerney, 9 November 2018)

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CRIMINAL LAW – Appeal – Conviction – Rape – Whether conviction unsafe and unsatisfactory – Whether substantial miscarriage of justice – Fresh evidence – No significant possibility that production of now available document in evidence would result in acquittal – Open to the jury to accept complainant’s account as credible and reliable – Fresh evidence did not amount to substantial miscarriage of justice – Leave to appeal refused – M v The Queen (1994) 181 CLR 478, R v AHK [2001] VSCA 220 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Mandy SC with Ms S Locke	David Barrese & Associates
For the Respondent	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
T FORREST JA

WEINBERG JA:

Introduction

On 5 September 2018, the applicant was convicted, after a trial in the County Court at Melbourne, of one count of rape. He was sentenced to five years’ imprisonment with a non-parole period of three years. A total of 65 days of presentence detention was declared to be taken into account.

The applicant and his wife had been married for approximately 28 years as at 9 November 2016, the day of the alleged rape. Their son, then aged 11, was present in the family home when the offending occurred.

The applicant sought leave to appeal against conviction on the following three grounds:

1.        The conviction is unsafe and unsatisfactory in that no reasonable jury           could have been satisfied of the complainant’s account beyond      reasonable doubt.
2.        The trial miscarried as a result of the admission of context evidence           where the probative value of the evidence was outweighed by the danger of unfair prejudice.
3.        There has been a miscarriage of justice in that there is a significant possibility that a jury acting reasonably would have acquitted the      applicant if a document, unavailable to the applicant at his trial, had been produced in evidence.

We shall not address ground 2, which was abandoned at the oral hearing of this application. We shall summarise the evidence relevant to the two surviving appeal grounds.

The complainant’s evidence at trial

The complainant said that she married the applicant in April 1998. They are now divorced. The family came to Australia from China in 2008. In 2016, the family lived in a house in Sandringham with their son. The marriage was in trouble by 2016 and in October of that year, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] VSCA 168
Decision Date: 23 June 2020

CaseChat Overview and Summary

The case of Chin Chen Li against The Queen concerns an appeal against a conviction for rape. The appellant, Chin Chen Li, sought to appeal his conviction on the grounds that the verdict was unsafe and unsatisfactory and that there had been a substantial miscarriage of justice. The appeal was heard in the Victorian Court of Appeal. The central issue before the court was whether the appellant's conviction was unsafe and unsatisfactory due to the unavailability of a particular document at the time of the trial, and whether the fresh evidence presented in the form of this document amounted to a substantial miscarriage of justice.

The court examined the nature of the fresh evidence and its potential impact on the trial's outcome. It considered whether the document had a significant possibility of leading to an acquittal. The court concluded that the fresh evidence did not suggest any significant possibility that the production of the document at the trial would have resulted in an acquittal. The jury was open to accept the complainant's account as credible and reliable, and the fresh evidence did not constitute a substantial miscarriage of justice. The court noted that the jury was properly directed and that the fresh evidence did not undermine the overall reliability of the conviction. Therefore, the appeal was dismissed, and leave to appeal was refused.

The court referenced precedents such as M v The Queen and R v AHK to support its reasoning. These cases established that for an appeal on the basis of a substantial miscarriage of justice to succeed, the fresh evidence must demonstrate a significant possibility of affecting the trial's outcome. In this instance, the court found that the fresh evidence did not meet this threshold. Consequently, the conviction remained safe and satisfactory, and the appeal was unsuccessful.

Orders