Gao v Regina

[2006] NSWCCA 384

CITATION:	GAO v REGINA [2006] NSWCCA 384
HEARING DATE(S):	14 November 2006
JUDGMENT DATE:	14 November 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Hidden J at 27; Hislop J at 28
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AGAINST CONVICTION - hold for advantage - actual bodily harm - unreasonable verdict - inconsistent verdicts - whether verdict on one count necessitated rejection of the whole of complainant’s evidence - length of deliberation - questions asked during deliberation - rational basis for distinguishing verdicts - whether miscarriage of justice
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CASES CITED:	MFA v The Queen (2002) 213 CLR 606 R v Markuleski (2001) 52 NSWLR 82
PARTIES:	Yanling Gao (Appl) The Crown
FILE NUMBER(S):	CCA 2006/1839
COUNSEL:	B P Hancock (Appl) N Noman (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0490
LOWER COURT JUDICIAL OFFICER:	Charteris DCJ
LOWER COURT DATE OF DECISION:	16 December 2005

2006/1839

McCLELLAN CJ at CL
HIDDEN J
HISLOP J

TUESDAY 14 NOVEMBER 2006

GAO, Yanling v REGINA

Judgment

1 McCLELLAN CJ at CL: The appellant was tried in the District Court on two counts as follows:

1. On 22 November 2004, at Randwick was armed with a weapon, namely a knife, with intent to commit an indictable offence, namely assault.

2. (At the same time and place) the appellant detained Yiguang “Bruce” Lin without his consent and with intent to hold him for advantage, namely to discuss a debt he owed to Yiguang “Bruce” Lin and at the time of detaining did occasion actual bodily harm to Yiguang “Bruce” Lin.

2 Count one is an offence pursuant s 114(1)(a) of the Crimes Act 1900. Count two is an offence pursuant to s 86(2)(b) of the Crimes Act 1900.

3 The jury found the appellant not guilty of the first count but guilty of the second count. The only ground of appeal is that the jury’s verdict was unreasonable.

Facts

4 The relevant events occurred in a room occupied by the appellant in the staff accommodation unit of the Prince of Wales Hospital. The appellant was a PhD student.

5 The evidence disclosed that in about June 2004 the complainant, Yiguang “Bruce” Lin, loaned a sum of money in Chinese Yuan 100,000 to the appellant. Both the complainant and the appellant are Chinese. They met in Australia. The appellant was apparently short of available funds and arranged to borrow the money and agreed to repay it with interest. It was agreed that a sum of $AUS22,000 was the amount which the appellant would repay.

6 The appellant had said that his shortage of funds was occasioned by his inability to access certain bank accounts. Although no precise date for repayment of the loan was agreed the parties kept in contact by telephone. In the months prior to the date of the incident the complainant made numerous telephone calls to the appellant demanding repayment. The complainant had also attended the appellant’s work place prior to the incident. The appellant had promised repayment but as of 22 November, when the relevant events occurred, had not repaid.

7 It was the Crown case that the appellant had telephoned the complainant on 22 November and told him that he had the money ready and asked him to come to his workplace at the hospital. The complainant allegedly did this and although he was initially unable to find the appellant he ultimately contacted him by telephone and they met outside the hospital. The complainant said that the appellant told him that it was not convenient to count the cash where they were standing and that it would be better if they went inside. The complainant followed the appellant through the hospital to his room.

8 The complainant said that after they had entered the room, the appellant locked the door and told him to sit on a particular chair which was located in the middle of the room. He said that the appellant placed a bag that he had been carrying on the floor. He said that the appellant was facing the bag and the appellant’s body blocked the complainant’s vision of it. The complainant said that he heard the appellant say something about having banked a cheque that morning. He heard the zip on the bag being opened but that he could not see exactly what the appellant did to the bag. He said that he suddenly turned and the appellant was holding a knife to the back of his neck.

9 The complainant said he was in shock. He said that the knife was a long kitchen knife with a black plastic handle. He said the blade of the knife was approximately 20 centimetres long and 3 or 4 centimetres wide. The complainant said that the appellant held the knife in his right hand and that he used his left hand to hold his, the complainant’s shoulder and thereby restrict his movements.

10 The complainant said he felt the sharp edge of the blade of the knife against his neck and that the appellant said: “don’t move or you will be killed.” The complainant said he was totally terrified and he did not say anything to the appellant. The complainant said the appellant was moving around and that he continued to hold the knife against his neck. The complainant stood up and the appellant held the knife more closely to his neck. The complainant said that just before he stood up the appellant said: “If you want to live life we must talk about the money.”

11 The complainant said that at one stage, when the appellant had released the pressure of the knife slightly, he grabbed the appellant’s right hand and twisted it so that the knife was pointing away from his own body. He and the appellant struggled and he was able to obtain possession of the knife. The complainant said that after he got possession of the knife he tried to leave the room but the appellant blocked the door and he could not get out. He said that he asked the appellant to let him out of the room but the appellant did not answer him.

12 The two men continued to struggle. The complainant said that the appellant pushed him towards the bed and then towards the desk. Eventually the appellant regained possession of the knife by using both his hands to grab the complainant’s right hand. The complainant said that the appellant then pushed him back so that he was sitting on the chair. He said that the appellant held the knife at his neck again but that this time he pushed it much harder against his neck. The complainant said he was feeling tired and that he said to the appellant “Let’s talk about the money.” He said that the appellant did not answer and that from time to time the appellant changed positions. The complainant said that he said to the appellant “Why are you holding the knife?” They continued to argue about the knife and there was yet a further struggle.

13 The complainant attempted to escape but the door had two locks on it which caused him difficulty. On one occasion the appellant stopped him from opening the door. In the course of their struggles the appellant’s hand was cut and he was able to make good his escape by opening the door. The complainant suffered some injury to both sides of his neck and some bruising to his thumb and wrist.

14 When the complainant escaped he made contact with Miss Tina Iacona, a nurse, who lived on the same floor of the building. She gave him assistance and the authorities were called. When Miss Iacona opened the door the complainant approached her screaming “Help me, help me, he’s trying to kill me, he’s got a knife, you’ve got to call security.”

The defence case

15 The defence case at the trial was that the appellant and complainant after meeting outside the workplace of the appellant then attended the office attached to the laboratory where the appellant was employed. They discussed the debt. Then the appellant asked the complainant to accompany him to his room to avoid a possible argument in the workplace. On entering the room the complainant was angry and as well as other words said: “It’s a long time that you haven’t paid the money back to me.” The appellant, as well as other words said: “a month later I will graduate from school so after I graduate I could get a good job and I can give you money back.”

16 The complainant turned towards a knife on the fridge or desk and said: “this is your last chance to pay” and made a “chopping motion.” In a somewhat interrupted answer in the ERISP (which was unchallenged by the appellant) the appellant told the police that the complainant had the knife in his hand. The complainant allegedly indicated by gesture to the appellant that (in a tradition apparently sometimes depicted in cinema) non-payment of the money might well result in the severing of a finger. The appellant’s evidence was that, fearing an injury he tried to seize the knife. The appellant managed to release the knife from the grip of the complainant but then the knife fell to the floor and the complainant snatched it again. The appellant again tried to grab the knife, which was in the hand of the complainant. During the subsequent struggle the appellant grabbed the blade of the knife and saw lots of blood. The complainant pushed the appellant and he fell to the floor. The complainant opened the door and left the room. The appellant’s fingers were bleeding and he applied a towel to them. He attended the laundry to wash his hand but was worried about infection and did not wash it. On the way back to his room he saw another resident and asked him to call security and he said he would do so.

Discussion

17 The evidence as to events in the room was confined to that of the appellant and of the complainant. After the complainant left the room he had the conversation with Ms Iacona which I have related. The appellant was heard by a person by the name of Mr Clarke to complain that the complainant was the aggressor and the appellant the victim. He has maintained that position ever since.

18 The appellant submitted that the verdict of the jury was unreasonable and cannot be supported having regard to the evidence. It was submitted that the jury having acquitted the appellant of count one it must be accepted that “elements of proof vital to the Crown case were not sustained by the complainant’s evidence.” It was submitted that the failure to accept the complainant’s evidence on one count should have occasioned the jury to have a reasonable doubt as to the appellant’s guilt of the second count. It was submitted that unless the complainant’s account was accepted the appellant could not be convicted of either count.

19 There is significance in the fact that the jury took a considerable period of time before reaching its verdict. The jury initially indicated that it had reached a unanimous verdict on count one but did not believe it would be able to reach a unanimous verdict in relation to count two. Thereafter they were given a “Black direction” and continued deliberations. At a later point the jury asked questions of his Honour seeking clarification of three points, one which concerned count one and the other two relating to count two. The question in relation to the first count was:

“Does ‘armed with a weapon’ mean the accused had possession of the weapon at the beginning of the events in the room, or could it mean he had possession of the knife at some point during the events in room 10.31?”

20 His Honour indicated to the jury that the appellant needed to be armed at the beginning of the events in the room. He also told the jury that the Crown needed to establish that the appellant was in possession of the knife when he entered the room, and more particularly they needed to be satisfied that he had it in the bag. The evidence available to support this proposition was circumstantial. It could have been that the knife was elsewhere in the room, not in the appellant’s bag. However, his Honour having directed the jury in specific terms unless they were satisfied beyond reasonable doubt that the knife was in the bag a verdict of acquittal on count one was inevitable.

21 In these circumstances the return of a verdict of acquittal on count one does not have the inevitable consequence that the jury has rejected the complainant’s evidence on this count. All that it means is that the jury was not satisfied that the knife was in the appellant’s bag. In these circumstances there is no relevant inconsistency between the verdicts. The jury could still accept the evidence of the appellant in relation to count two.

22 The jury were given appropriate directions by the trial judge and no complaint is made in relation to them. These included the fact that the jury should consider each count separately. They were further directed that they could consider and accept all or only part of a witness’s evidence.

23 I have found that the jury’s verdicts were not inconsistent. In any event although in some cases inconsistent verdicts may bespeak a miscarriage of justice in relation to the counts upon which a person is convicted this is not always the case. In R v Markuleski (2001) 52 NSWLR 82 at [92] the Chief Justice said:

“In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones ( Jones v The Queen (1997) 191 CLR 439) is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury.”

24 In the present case the jury had the benefit of seeing the witnesses and hearing their evidence. This is accepted as a considerable advantage over the position of an appeal court: (Markuleski at 99 [70] and 130 [213]). The setting aside of a jury’s verdict is a serious step: MFA v The Queen (2002) 213 CLR 606 at [49]. If there is a rational basis for differentiating between the verdicts on different counts there must be other reasons which justify intervention by this Court. Notwithstanding the bold submissions presented by counsel for the appellant, I am unable to discern that there are such reasons in the present case.

25 In my opinion it has not been demonstrated that the verdict was “unreasonable and cannot be supported having regard to the evidence”: see s 6(1) Criminal Appeal Act 1912.

26 Accordingly, in my opinion, the appeal should be dismissed.

27 HIDDEN J: I agree.

28 HISLOP J: I also agree.

29 McCLELLAN CJ at CL: Accordingly, the orders of this Court are as I have indicated.

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