Lai v The Queen - [2019] NSWCCA 305

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lai v R [2019] NSWCCA 305
Hearing dates: 8 November 2019
Decision date: 19 December 2019
Before: Gleeson JA at [1]
Walton J at [112]
Fullerton J at [113]
Decision:
(1)   Grant leave to appeal.

(2)   Allow the appeal against conviction on counts 1 and 2.

(3)   Quash the appellant’s convictions on counts 1 and 2.
(4)   Direct a retrial on counts 1 and 2, and that the matter be listed for mention before the District Court at Sydney on 17 January 2020.
Catchwords: CRIME – appeals – leave to appeal against conviction – whether miscarriage of justice – administering intoxicating substance with intent to commit an indictable offence and sexual intercourse without consent – Crimes Act 1900 (NSW), ss 38(b) and 61I – whether trial judge fairly put the defence case to the jury – whether trial judge made impermissible comments in summing up – convictions quashed and retrial ordered
Legislation Cited: Crimes Act 1900 (NSW), ss 4, 38(b), 61I, 578A
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Criminal Appeal Rules (NSW), r 4
Criminal Procedure Act 1986 (NSW), s 161
Firearms Act 1996 (NSW), ss 7(1), 36(1)
Cases Cited: Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
Castle v The Queen; Bucca v The Queen [2016] HCA 46; (2016) 91 ALJR 93
Dickson v R [2017] NSWCCA 299
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
Roos v R [2019] NSWCCA 67
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
Category: Principal judgment
Parties: Pacino Kin Yu Lai (Appellant)
Crown (Respondent)
Representation:
Counsel:
P Coady / C Kapsis (Appellant)
B K Baker (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2015/349944
Publication restriction: Publication of the name and any other matters which may tend to identify the complainant is prohibited pursuant to s 578A of the Crimes Act 1900 (NSW).
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 November 2018

Before:

Wilson SC DCJ

File Number(s):

2015/349944

Judgment

GLEESON JA: On 12 April 2018, the applicant, Mr Pacino Kin Yu Lai, was convicted of two offences after a trial by jury before a District Court judge:

Count 1: administer intoxicating substance with intent to commit an indictable offence (sexual intercourse without consent), contrary to s 38(b) of the Crimes Act 1900 (NSW);

Count 2: sexual intercourse without consent, contrary to s 61I of the Crimes Act.

He seeks leave to appeal against his convictions only.
The two grounds of appeal contend that the trial judge’s summing up was unbalanced and unfair and caused a miscarriage of justice.
These grounds require an assessment of the manner in which the trial was conducted…

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.

Continue reading Lai v The Queen

Details

AGLC: Lai v The Queen [2019] NSWCCA 305
Case: [2019] NSWCCA 305
Decision Date: 19 December 2019

CaseChat Overview and Summary

The appellant, Lai, was convicted by a jury in the Supreme Court of New South Wales of administering an intoxicating substance with intent to commit an indictable offence and sexual intercourse without consent. Lai appealed against the conviction to the Court of Criminal Appeal, which dismissed the appeal. Lai then sought special leave to appeal against the conviction to the High Court of Australia. The central issues were whether the trial judge had fairly put the defence case to the jury and whether the trial judge made impermissible comments in summing up to the jury.

The court noted that the trial judge had failed to adequately put the defence case to the jury, particularly in relation to the mens rea for the charge of administering an intoxicating substance with intent to commit an indictable offence. The court found that the trial judge had not properly directed the jury on the need to establish that the appellant intended to commit a specific indictable offence at the time of administering the substance. In addition, the court found that the trial judge had made an impermissible comment in summing up which may have prejudiced the jury against the defence. The court held that these errors amounted to a miscarriage of justice and quashed the convictions, ordering a retrial.

The court emphasised the importance of trial judges properly directing juries on the elements of the offence and the applicable defences. The court also noted the need for trial judges to avoid making comments in summing up that may prejudice the jury against the defence. The court concluded that the errors in this case were sufficiently significant to warrant a retrial.

The High Court granted special leave to appeal and quashed Lai's convictions. The court ordered that Lai be retried on the charges of administering an intoxicating substance with intent to commit an indictable offence and sexual intercourse without consent.

Orders