Jianmin Yang (a pseudonym) v The King - [2023] VSCA 154

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0084

JIANMIN YANG (A PSEUDONYM)	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST, WALKER and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2023
DATE OF JUDGMENT:	14 June 2023
DATE OF REASONS:	23 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 154
JUDGMENT APPEALED FROM:	[2022] VCC (Judge Coish)

---

CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal against conviction – Applicant convicted on charges of rape, attempted rape, common assault, and criminal damage – Complainant the wife of the applicant – Evidence of alleged violence by complainant to young daughter – Evidence of removal by Child Protection Services of child from the custody of complainant – Impermissible suggestion by prosecutor in final address for jury to speculate why applicant’s young daughter not living with him – Trial counsel did not request judge to give curative direction – Whether substantial miscarriage of justice – Application for leave to appeal conviction granted – Appeal allowed – New trial ordered.

Criminal Procedure Act 2009, s 276(1)(b).

Knowles v The Queen [2015] VSCA 141; TKWJ v The Queen (2002) 212 CLR 124; Baini v The Queen (2012) 246 CLR 469; Andelman v The Queen (2013) 38 VR 659; Weiss v The Queen (2005) 224 CLR 300; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Huynh v The Queen [2020] VSCA 222; Paulino v The Queen [2018] VSCA 306; The Queen v Momcilovic (2010) 25 VR 436.

---

Counsel
Applicant:		Mr C Mandy SC with Mr A Imrie
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Fumens Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
WALKER JA
KAYE JA:

The applicant was convicted, by the jury empanelled on his trial, of three charges of rape, one charge of attempted rape, one charge of common assault, and one charge of criminal damage. Following a plea made on his behalf, he was sentenced to a total effective sentence of 9 years’ imprisonment, with a non-parole period of 6 years.
The applicant has sought leave to appeal against his conviction on two grounds. First, it is contended that his counsel failed to adduce evidence, which would have substantially undermined the credibility of the complainant. The second ground concerns an impermissible invitation, by the prosecutor to the jury in final address, to indulge in speculation concerning the fact that the applicant’s young daughter was not then living with him. The applicant has also sought leave to appeal against sentence on the ground of manifest excess.
At the conclusion of argument, the Court formed the view that the application for leave to appeal against conviction should be granted, and the appeal allowed, on ground 2. In those circumstances, counsel for each side agreed that it is not necessary for us to determine ground 1. The following are our reasons for upholding ground 2.

Background circumstances

The applicant was born…

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.

Keep reading for free

Create a free CaseChat account to read Jianmin Yang (a pseudonym) v The King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] VSCA 154
Decision Date: 14 June 2023

CaseChat Overview and Summary

The appellant, Jianmin Yang, was convicted of multiple serious offences including rape, attempted rape, common assault, and criminal damage. The complainant was Yang's wife, and the offences occurred in the context of a turbulent marital relationship. The case was heard in the Victorian Court of Appeal, where Yang sought leave to appeal against his conviction. The primary ground for appeal was the alleged prejudicial comments made by the prosecutor during the final address to the jury, which suggested that the jury speculate on why Yang's young daughter was not living with him. This suggestion was made in the context of evidence regarding alleged violence by the complainant towards the child and the subsequent removal of the child by Child Protection Services.

The legal issues before the court included whether the prosecutor's comments amounted to an impermissible suggestion that could lead to a substantial miscarriage of justice. The court considered whether Yang's trial counsel should have requested the judge to give a curative direction to the jury. Additionally, the court examined the cumulative effect of any errors on the safety of Yang's conviction, in accordance with the provisions of the Criminal Procedure Act 2009. The court found that the prosecutor's comments were indeed prejudicial, and that the trial counsel's failure to seek a curative direction exacerbated the impact of these comments. Given these findings, the court concluded that a substantial miscarriage of justice had occurred.

Accordingly, the Court of Appeal granted Yang leave to appeal against his conviction. The appeal was subsequently allowed, and a new trial was ordered. The court found that the prejudicial comments and the failure to seek a curative direction cumulatively affected the safety of Yang's conviction, warranting a fresh trial. This decision underscores the importance of careful management of prosecutorial comments and the need for timely curative directions to prevent miscarriages of justice.

Orders