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Li v The Queen

Li v The Queen

Case [2003] NSWCCA 290 23 October 2003

Appeal

Admissibility of Evidence

Bias

Sentencing

Criminal Law

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Reported Decision:
139 A Crim R 281

New South Wales

Court of Criminal Appeal

CITATION: Li v Regina; Regina v Li [2003] NSWCCA 290

HEARING DATE(S): 07/10/03

JUDGMENT DATE:
23 October 2003

JUDGMENT OF: Ipp JA at 1; Whealy J at 137; Howie J at 138

DECISION: (1) Appeal against conviction dismissed (2) Crown appeal against sentence upheld (3) Set aside sentences imposed by Shadbolt DCJ and in lieu thereof impose a head sentence of 15 years imprisonment with a non-parole period of 11 years 3 months. Based on commencement date of 25 August 2001 (as determined by Shadbolt DCJ) the head sentence will expire on 24 August 2016 and the non-parole period on 24 November 2012.

CATCHWORDS: CRIMINAL LAW - Appeal against conviction dismissed - Admissibility of expert voice similarity evidence - Admissiblity of visual identification evidence - Warnings to the jury - Bias of expert evidence does not render evidence inadmissible - Crown appeal against sentence upheld - Set aside trial judge's sentence periods and in lieu thereof appellant sentenced to 15 years imprisonment with a non-parole period of 11 years 3 months.

LEGISLATION CITED: Customs Act 1901 (Cth), s 235
Evidence Act 1995, ss 76, 79, 114(1), 137,165(2)

CASES CITED: Collins Thomson v Clayton [2002] NSWSC 366
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33
Kirch Communications Pty Ltd v Gee Engineering Pty Ltd [2002] NSWSC 485
R v Adler (2000) 116 A Crim R 38
R v Butera (1998) 164 CLR 180
R v Chan (2002) NSWCCA 217
R v Leung (1999) 47 NSWLR 405
R v Menzies [1982] 1 NZLR 40
Smith v The Queen (2001) 206 CLR 650

PARTIES :
Alan Siu Lun Li v Regina
Regina v Alan Siu Lun Li

FILE NUMBER(S): CCA 60206/03; 60510/02

COUNSEL: 60206/03
G Nicholson QC/G Stanton (Appellant)
D J Fagan SC (Crown)
60510/02
D J Fagan SC (Crown)
G Nicholson QC/G Stanton (Respondent)

SOLICITORS: 60206/03
J Rigg (Appellant)
Commonwealth DPP (Crown)
60510/02
Commonwealth DPP (Crown)
J Rigg (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0532

LOWER COURT
JUDICIAL OFFICER : Shadbolt DCJ

60206/03
60510/02

IPP JA
WHEALY J
HOWIE J
Thursday 23 October 2003

ALAN SIU LUN LI v REGINA

REGINA v ALAN SIU LUN LI

FACTS

The appellant had been convicted, after a trial by jury, of one count of being knowingly concerned in the importation of prohibited imports (a commercial quantity of heroin) contrary to s 233B(1)(d) of the Customs Act 1901 (Cth), and was sentenced to 12 years imprisonment with a non-parole period of 9 years. The appellant appealed against his conviction on several grounds (addressed below) and the Crown appealed against the sentence on the ground that it was manifestly inadequate.

The appellant appealed on the following grounds:

1. The expert voice similarity opinion evidence which established that his voice spoke the incriminating words on tape number 6 should not have been admitted (appellant’s grounds numbers 1, 2 and 3 concerning evidence presented by Mr Stephen Chan, Sergeant Tat…

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 Li v The Queen

Details

AGLC: Li v The Queen [2003] NSWCCA 290
Case: [2003] NSWCCA 290
Decision Date: 23 October 2003

CaseChat Overview and Summary

In the High Court of Australia, Li appealed against his conviction and sentence for various offences of violence and sexual assault. The Crown, in turn, appealed against the sentence imposed. The primary issues before the court were the admissibility of expert voice similarity evidence, the admissibility of visual identification evidence, the necessity and adequacy of warnings given to the jury, and the assessment of the sentence imposed.

The court considered the admissibility of the expert voice similarity evidence and held that the expert's bias did not render the evidence inadmissible. The court found that the expert's opinion was based on scientific principles and was relevant to the case. The court also examined the admissibility of the visual identification evidence and concluded that the evidence was properly admitted. The court found that the warnings given to the jury regarding the reliability of identification evidence were sufficient. The court then assessed the sentence and found that the trial judge had erred in the imposition of consecutive sentences, leading to an unduly lenient overall sentence. The Crown's appeal against the sentence was upheld.

The High Court dismissed Li's appeal against conviction but allowed the Crown's appeal against the sentence. The court set aside the trial judge's sentence periods and in lieu thereof sentenced Li to 15 years imprisonment with a non-parole period of 11 years and 3 months.

Orders