Li v The Queen - [2011] VSCA 183

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0860

FENG LI	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG, BONGIORNO and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 May 2011
DATE OF JUDGMENT	24 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 183
JUDGMENT APPEALED FROM	R v Li (Unreported, County Court of Victoria, Judge Duggan, 8 October 2009)

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CRIMINAL LAW – Application for leave to appeal – Conviction – Indecent assault – Consent – Attempt to kiss formed basis of charge in Crown opening – Evidence given of other acts that could form basis of charge – Jury invited to consider all circumstances surrounding attempted kiss as going to indecent act alleged – Whether Crown needed to elect which incident gave rise to charge – Whether judge erred in directing jury that whole incident was basis of charge – Whether judge required to direct that jury be unanimous about which incident gave rise to charge – Whether Crown impermissibly changed case – Whether verdict unsafe and unsatisfactory – Leave refused

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Appearances:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC	Michael Gleeson & Associates
For the Respondent	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

The applicant, Feng Li, was presented in the County Court at Melbourne on one count of indecent assault and one count of assault with intent to rape. He was convicted on the first of those two counts, and acquitted on the second.

The applicant now seeks leave to appeal against conviction.

The background facts briefly were these. The applicant was born in China. He came to this country in August 2006. He enrolled in various courses at RMIT and had done very well as a student.

The applicant became acquainted, over an internet chat site, with a young woman, ‘LW’. LW had also been born in China, and was also a student in Australia.

The offence in question was alleged to have been committed on 20 February 2007. On that day, LW contacted the applicant and suggested that they have dinner. He agreed, and invited her to his home. He told her that he would prepare dinner for them both.

The applicant collected LW and drove her to his house which he shared with several other students. LW waited in the applicant’s bedroom while the applicant went into the kitchen to prepare dinner. While he was in the kitchen, LW used the applicant’s computer. She was seated on the floor at the time. The applicant returned to the bedroom and they ate the meal that he had cooked.

After they had eaten, the applicant made sexual overtures towards LW. Her evidence was that, right from the outset, she made it clear to him that his advances were unwelcome. Nonetheless, according to her, he persisted.

LW said that the applicant tried to grab her hand. He then got up, grabbed her under the knees and behind her neck, and lifted her up…

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 [2011] VSCA 183
Case: [2011] VSCA 183
Decision Date: 24 June 2011

CaseChat Overview and Summary

In the matter of Li versus The Queen, the applicant sought leave to appeal against a conviction for indecent assault. The dispute centred around the basis of the charge and whether the Crown had properly elected the incident that constituted the offence. The case was heard in the High Court of Australia. The primary legal issue was whether the Crown was required to elect which specific act of attempted kissing formed the basis of the charge, and whether the trial judge erred in directing the jury that the entire incident, including the attempted kiss and subsequent events, constituted the indecent act alleged. Another concern was whether the judge should have directed the jury to be unanimous about which incident gave rise to the charge, and if the Crown had impermissibly changed its case during the trial. Additionally, the court considered whether the verdict was unsafe and unsatisfactory, warranting leave to appeal.

The High Court examined the principles of criminal law pertaining to the sufficiency of a charge and the requirement for the Crown to elect the specific act forming the basis of the charge. The court concluded that the Crown did not need to elect a specific incident for the charge of indecent assault, as the jury could consider the entire incident as the basis for the charge. The court found that the trial judge did not err in directing the jury that the whole incident, including the attempted kiss and subsequent events, constituted the indecent act alleged. The court further determined that there was no requirement for the judge to direct the jury to be unanimous about which incident gave rise to the charge. The court also rejected the argument that the Crown impermissibly changed its case during the trial, finding that the evidence presented was relevant to the overall circumstances surrounding the alleged indecent assault. Ultimately, the High Court found that the verdict was not unsafe and unsatisfactory, and therefore, refused the applicant leave to appeal.

In light of the above findings, the High Court dismissed the application for leave to appeal. The court upheld the conviction for indecent assault, confirming that the trial judge's direction to the jury was appropriate and that the verdict was safe and satisfactory. As a result, the applicant's conviction stands, and the decision of the lower court is affirmed.

Orders