| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0084 |
| JIANMIN YANG (A PSEUDONYM) | Applicant |
| v | |
| THE KING | Respondent |
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| 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) |
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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.
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| 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…
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- Case
- [2023] VSCA 154
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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