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Li v The Queen

Li v The Queen

Case [2010] NSWCCA 40 8 March 2010

Appeal

Admissibility of Evidence

Sentencing

Jurisdiction

Practice and Procedure

Summarizing and Directing the Jury

Jury Misconduct

Criminal Law

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Reported Decision: 199 A Crim R 419

New South Wales

Court of Criminal Appeal

CITATION: Li, Wing Cheong v R [2010] NSWCCA 40

HEARING DATE(S): 10/12/2009

JUDGMENT DATE:
8 March 2010

JUDGMENT OF: Macfarlan JA at 1; Howie J at 2; Hall J at 2

DECISION: The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - Conviction appeal - Money Laundering - EVIDENCE - whether telephone conversations between persons not charged with offence hearsay - whether evidence should have been excluded under s 137 of Evidence Act - SUMMING UP - whether directions as to use to be made of telephone calls adequate - PRACTICE AND PROCEDURE - whether Crown's address to jury prejudicial - SUMMING UP - whether Judge erred in directions given concerning Crown's address - whether directions on character adequate - PRACTICE AND PROCEDURE - whether misconduct bu jury caused miscarriage of justice - juror playing word game in court room

LEGISLATION CITED: Judiciary Act (Cth) - s 78B
Criminal Code (Cth) - ss 135, 400.3(1), 400.3(4)
Evidence Act 1995 - ss 59(1), 135, 137
Jury Act 1977 - s 53A, 73A, Part 9
Criminal Appeal Rules - Rule 4

CATEGORY: Principal judgment

CASES CITED: Papakosmas v The Queen [1999] HCA 37; (1999) 1996 CLR 297
Walton v The Queen [1989] HCA 9; (1988-1989) CLR 283
Pollitt v The Queen [1992] HCA 35; (1992) 35; (1992) 174 CLR 558
Regina v Lee [1998] HCA 60; (1998) 195 CLR 594
Burrell v R [2007] NSWCCA 65
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358

TEXTS CITED: Criminal Trial Courts Bench Book

PARTIES: Wing Cheong LI v Regina

FILE NUMBER(S): CCA 2006/15258

COUNSEL: W Abraham QC - Crown
M M Ramage QC - Appellant

SOLICITORS: Commonwealth Director of Public Prosecutions - Crown
Jeffreys & Associates - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2006/11/0479

LOWER COURT JUDICIAL OFFICER: GD Woods DCJ

LOWER COURT DATE OF DECISION: 27/07/2008

2006/15258

MACFARLAN JA
HOWIE J
HALL J
MONDAY 8 MARCH 2010

Wing Cheong LI v REGINA

Judgment

1 MACFARLAN JA: I agree with Howie and Hall JJ.

2 HOWIE and HALL JJ: This is an appeal against conviction, an application for leave to appeal against sentence and a Crown appeal against what is asserted to be the leniency of the sentence imposed. It was determined that the conviction appeal would only be dealt with at this hearing. This was because this Court, differently constituted, is presently reserved on the question of the application of recent legislation that purports to limit the discretion of the Court in determining a Crown appeal. Shortly before the hearing of the appeal the applicant issued notices under s 78B of the Judiciary Act (Cth) in relation to a constitutional challenge to that legislation. This meant that the hearing date would have to be vacated if the Crown appeal was to be heard. It was, therefore, considered that the most appropriate course was to proceed with the challenge…

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 [2010] NSWCCA 40
Case: [2010] NSWCCA 40
Decision Date: 8 March 2010

CaseChat Overview and Summary

Li, the appellant, appealed against his conviction for various counts of money laundering. The appeal was heard in the High Court of Australia. The core issue before the Court was whether the trial judge erred in his handling of evidence, specifically telephone conversations between individuals not charged with the offence, and whether these conversations should have been excluded as hearsay under section 137 of the Evidence Act. Additionally, the Court needed to determine if the judge's summing up to the jury was adequate and whether any misconduct by a juror during the trial warranted a new trial.

The High Court found that the trial judge did not err in admitting the telephone conversations as evidence. The Court reasoned that these conversations were not hearsay as they were not being used to prove the truth of the matters asserted but rather to show the appellant's state of mind or knowledge. Regarding the summing up, the Court held that the judge's directions to the jury were adequate and that there was no error in the judge's handling of the Crown's address to the jury. The Court further found that the judge's directions concerning the character of the appellant were sufficient and that there was no miscarriage of justice due to the alleged misconduct of a juror. The Court dismissed the appeal, affirming the appellant's conviction.

Orders