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Li v The Queen

Li v The Queen

Case [2019] NSWCCA 228 27 September 2019

Appeal

Jurisdiction

Admissibility of Evidence

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Li v R [2019] NSWCCA 228
Hearing dates: 28 August 2019
Decision date: 27 September 2019
Before: Gleeson JA at [1]
Johnson J at [127]
Fagan J at [128]
Decision:
(1) Extend the time for filing of the notice of application for leave to appeal to 29 March 2019.
(2) Refuse leave to appeal against conviction.
Catchwords: CRIME – appeals – leave to appeal against conviction – supply large commercial quantity of prohibited drug and possess prohibited weapon – where applicant’s counsel did not object to summing up or directions at trial – whether trial judge erroneously confined applicant’s evidence on possession as relevant to the Carey defence – whether directions on joint possession misled the jury – whether the applicant’s case on possession fairly put to the jury in the summing up and directions
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Appeal Rules (NSW), r 4
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25A, 25, 29, 33
Weapons Prohibition Act 1998 (NSW), s 7(1)
Cases Cited: A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174
AP v R [2013] NSWCCA 189
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
Dixon v R [2017] NSWCCA 299
Filippou v The Queen (2105) 256 CLR 47; [2015] HCA 29
Odisho v R [2018] NSWCCA 19; (2018) 271 A Crim R 325
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Carey (1990) 20 NSWLR 292
R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
Roach v R [2019] NSWCCA 160
Roos v R [2019] NSWCCA 67
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
Category: Principal judgment
Parties: Yu Hai Li (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
Mr T Game SC / Ms A Francis (Applicant)
Ms B Baker (Respondent)
Solicitors:
Bannisters Lawyers (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/197409
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 May 2017

Before:

Herbert DCJ

File Number(s):

2014/197409

Judgment

GLEESON JA: Following a 32-day trial in the District Court at Parramatta before Herbert DCJ and a jury of twelve, the applicant, Mrs Yu Hai Li, was found guilty of the following charges:

1. On 3 July 2014, at Parramatta in the State of New South Wales, did supply a prohibited drug, namely, 3,784.9g of methylamphetamine, being an amount not less than a large commercial quantity applicable to that drug.
Section 25(2), Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA Act).

2. On 3 July 2014 at Parramatta in the State of New South Wales, did possess a prohibited weapon, namely, a hand-held device that is…

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 [2019] NSWCCA 228
Case: [2019] NSWCCA 228
Decision Date: 27 September 2019

CaseChat Overview and Summary

The applicant, Li, sought leave to appeal against his conviction for supplying a large commercial quantity of a prohibited drug and possessing a prohibited weapon. The appeal centred on whether the trial judge had erroneously confined the applicant's evidence regarding possession as relevant only to the defence of Carey, whether the directions on joint possession had misled the jury, and if the applicant's case on possession was fairly presented to the jury in the summing up and directions. The High Court was tasked with determining whether the applicant's failure to object to the summing up or directions at trial meant that these issues could not be raised on appeal.

The court considered whether the trial judge had constrained the applicant's evidence on possession to the Carey defence, potentially limiting its scope. The court also examined whether the trial judge's directions on joint possession had led the jury to an incorrect understanding of the law. Additionally, the court scrutinised whether the applicant's case on possession was fairly put to the jury in the summing up and directions, notwithstanding the applicant's counsel's failure to object. The court concluded that the trial judge had not confined the applicant's evidence to the Carey defence, that the directions on joint possession were not misleading, and that the applicant's case on possession had been fairly presented to the jury.

After careful consideration of the issues, the court found that the applicant's counsel's failure to object to the summing up or directions at trial did not preclude the raising of these issues on appeal. The court held that the trial judge had not erroneously confined the applicant's evidence on possession to the Carey defence, that the directions on joint possession were not misleading, and that the applicant's case on possession had been fairly presented to the jury. Consequently, the court found that the applicant's appeal should be dismissed. The court determined that the applicant's failure to object at trial did not result in a miscarriage of justice and that the applicant's arguments on appeal were without merit.

Orders