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Leung v The Queen

Leung v The Queen

Case [2014] NSWCCA 336 22 December 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Leung v R [2014] NSWCCA 336
Hearing dates: 15.09.2014
Decision date: 22 December 2014
Before: Hoeben CJ at CL at [1]
Fullerton J at [131]
Adamson J at [189]
Decision:
1. Appeal upheld.
2. Conviction quashed.
3. Verdict of acquittal entered.

Catchwords: CRIMINAL LAW - appeal against conviction and sentence - manslaughter - whether conviction was unreasonable or cannot be supported having regard to the evidence
Legislation Cited: Crimes Act 1900 - s18(1)(b)
Cases Cited: House v The King [1936] HCA 40; 55 CLR 499
M v R [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Markarian v R [2005] HCA 25; 228 CLR 357
R v Blacklidge (unreported, NSWCCA 12 December 1995)
R v Forbes [2005] NSWCCA 377; 160 A Crim R 1
R v Leung (No 3) [2009] NSWSC 450
R v Leung [2011] NSWSC 785
R v Leung [2013] NSWSC 259
R v Loveridge [2014] NSWCCA 120
R v PL [2009] NSWCCA 256
R v PL [2012] NSWCCA 31
SKA v The Queen [2011] HCA 13; 243 CLR 400
Stephens v R [2009] NSWCCA 240
Category: Principal judgment
Parties: Phillip Wan Por Leung - Applicant
Regina - Respondent Crown
Representation: Counsel:
Mr W Terracini SC - Applicant
Ms N Adams SC - Respondent Crown
Solicitors:
Archbold Legal - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2008/6766
Decision under appeal

Date of Decision:

2013-03-28 00:00:00

Before:

Price J

File Number(s):

2008/6766

Judgment

HOEBEN CJ at CL:

Offence and sentence

On 28 November 2012, after a trial which commenced on 12 November, the applicant was found guilty by a jury of the manslaughter of his partner, Mario Guzetti (the deceased). The offence contrary to s18(1)(b) Crimes Act 1900 took place on 7 April 2007.

The applicant was sentenced in the Supreme Court by Price J on 28 March 2013. His Honour imposed a sentence of imprisonment of 8 years with a non-parole period of 4 years and 6 months, commencing 26 July 2012 and expiring 25 January 2017. The head sentence expires on 25 July 2020.

The applicant seeks leave to appeal against both his conviction and sentence. The ground of appeal against conviction is that the conviction was "unreasonable or cannot be supported having regard to the evidence". The ground of appeal against sentence is that the sentence imposed was manifestly excessive.

The matter was heard by the Court on 15 September 2014. On 25 September 2014 the Court conducted a view of the premises where the offence took place with a particular focus on the stairs, the kitchen and the hallway from the stairs to the front door.

The matter has had a somewhat chequered history.

20 April 2009 the applicant stood trial in the Supreme Court for murder before Rothman J and a jury.
4 May 2009 Rothman J directed the jury to return a…

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 Leung v The Queen

Details

AGLC: Leung v The Queen [2014] NSWCCA 336
Case: [2014] NSWCCA 336
Decision Date: 22 December 2014

CaseChat Overview and Summary

Leung appealed against his conviction and sentence for manslaughter, arguing that the conviction was unreasonable or could not be supported by the evidence. The appeal was heard in the High Court of Australia. The central issue before the court was whether the conviction was unreasonable or could not be supported having regard to the evidence, particularly in light of the medical evidence regarding the victim's injuries and the surrounding circumstances.

The court considered whether the jury could have reasonably concluded that the appellant had intentionally caused the death of the victim, or whether the death was the result of an accident. The court examined the medical evidence, which suggested that the victim's injuries were consistent with being caused by a fall, and that the appellant's actions could have been accidental. The court also considered the surrounding circumstances, including the appellant's state of intoxication and the evidence of other witnesses.

In reaching its decision, the court held that the jury could have reasonably concluded that the appellant had intentionally caused the death of the victim, despite the medical evidence suggesting that the injuries were consistent with a fall. The court found that the evidence supported the conclusion that the appellant had acted with recklessness or criminal negligence, and that the conviction was not unreasonable or unsupported by the evidence. The appeal was therefore dismissed.

The High Court affirmed the appellant's conviction and sentence for manslaughter, rejecting his argument that the conviction was unreasonable or could not be supported by the evidence. The court held that the jury was entitled to conclude that the appellant had acted with recklessness or criminal negligence, and that the evidence supported this conclusion. The appeal was dismissed, and the appellant's conviction and sentence were upheld.

Orders