Medium Neutral Citation: Le v R [2020] NSWCCA 238
Hearing dates: 26 August 2020
Decision date: 23 September 2020
Before: Hoeben CJ at CL at [1];
Davies J at [110];
Adamson J at [134]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.
(3) Order, until further order, on the ground in s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the complainant be referred to by the pseudonym, S, and not otherwise identified.

Catchwords:
CRIMINAL LAW – conviction appeal – found guilty by a jury of causing grievous bodily harm while reckless as to the causing of actual bodily harm by way of stomping or kicking the victim’s hip – acquitted of an assault occasioning actual bodily harm – sentenced to imprisonment for 3 years and 6 months with a non-parole period of 1 year and 9 months – appeal asserting that verdict of jury unreasonable or cannot be supported having regard to evidence – Crown case relied on a single witness – challenge to reliability of that witness – apparent discrepancy between initial complaint and texts sent to applicant – failure to adequately explain discrepancy – problems with complaint evidence – unexplained failure on the part of Crown to call an important witness – medical evidence supported claim – availability of reasonable alternate hypothesis explaining injury – leave to appeal granted but appeal dismissed.

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW) – s 8(1)(e)
Crimes Act 1900 (NSW) – s 35(2)
Criminal Appeal Act 1912 (NSW) – s 5(1)(b)

Cases Cited:
Chidiac v The Queen (No 2) [2016] NSWCCA 120
Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34
Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45
Fennell v The Queen [2019] HCA 37
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Pell v The Queen [2020] HCA 12
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: David Ahn Le – Applicant
Regina – Respondent Crown
Representation:
Counsel:
H Dhanji SC/K Edwards – Applicant
B Hatfield – Respondent Crown
Solicitors:
Armstrong Legal – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2017/340688
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainant (Court Suppression and Non-publication Orders Act 2010 (NSW), s 8)
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

07 February 2020

Before:

Yehia SC DCJ

File Number(s):

2017/340688

JUDGMENT

HOEBEN CJ at CL:

Overview

The applicant stood trial before her Honour Judge Yehia…

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 Le v The Queen

Details

AGLC: Le v The Queen [2020] NSWCCA 238
Case: [2020] NSWCCA 238
Decision Date: 23 September 2020

CaseChat Overview and Summary

The applicant, Le, was found guilty by a jury of causing grievous bodily harm by stomping or kicking the victim’s hip, while reckless as to the causing of actual bodily harm. He was acquitted of assault occasioning actual bodily harm. He was sentenced to imprisonment for 3 years and 6 months with a non-parole period of 1 year and 9 months. The applicant appealed against his conviction, contending that the jury’s verdict was unreasonable or could not be supported in light of the evidence. The Crown’s case relied on a single witness, whose reliability was challenged. There was an apparent discrepancy between the witness’s initial complaint and text messages sent to the applicant. The Crown failed to adequately explain this discrepancy. The Crown also failed to call an important witness. The medical evidence supported the applicant’s claim, and a reasonable alternate hypothesis existed that could explain the injury.

The court considered whether the jury’s verdict was unreasonable or unsupported by the evidence. The court noted that the Crown’s case relied on a single witness, whose reliability was challenged due to the discrepancy between their initial complaint and text messages sent to the applicant. The court also noted the Crown’s failure to adequately explain this discrepancy and the failure to call an important witness. The medical evidence supported the applicant’s claim, and a reasonable alternate hypothesis existed that could explain the injury. However, the court held that the appeal was dismissed. The court found that the jury was entitled to reject the applicant’s hypothesis and accept the Crown’s evidence. The court held that the jury’s verdict was open on the evidence before it, and the appeal was dismissed.

The court did not order a retrial or a new trial. The applicant’s appeal against his conviction was dismissed, and his sentence was upheld.

Orders