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Liu v The Queen; Lv v The Queen

Liu v The Queen; Lv v The Queen

Case [2017] NSWCCA 148 17 June 2017

Appeal

Admissibility of Evidence

Error of Law

Substantial Miscarriage of Justice

Re-sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Liu v R; Lv v R [2017] NSWCCA 148
Hearing dates: 2 June 2017
Date of orders: 17 June 2017
Decision date: 17 June 2017
Before: Hoeben CJ at CL at [1]
Garling J at [2]
Bellew J at [184]
Decision:
(1)   Leave to appeal against sentence be granted to each applicant.
(2)   The appeal of Dino Shihang Liu against conviction and sentence be dismissed.
(3)   The appeal by Yaxuan Lv against sentence be dismissed.

Catchwords: APPEAL – appeal against conviction – error in admitting evidence of admission
EVIDENCE – admissions – criminal proceedings – official questioning
APPEAL – appeal against conviction – error of law – whether substantial miscarriage of justice
APPEAL – appeal against sentence – error of law – characterisation of victim as “vulnerable” – whether taking money an inherent aspect of robbery in company
APPEAL – appeal against sentence – exercise of re-sentencing discretion
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited:
Couloumbis v R [2012] NSWCCA 264
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Lane v R [2017] NSWCCA 46
Owens v R [2017] NSWCCA 16
R v Couloumbis [2012] NSWCCA 264
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Henry [1999] 46 NSWLR 346
R v Horton (1998) 45 NSWLR 426
R v Murchie (1999) 108 A Crim R; [1999] NSWCCA 424
R v Naa [2009] NSWSC 851; (2003) 197 A Crim R 192
R v Sharp [2003] NSWSC 1117; (2003) 143 A Crim R 344
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Dino Shihang Liu (Applicant – 2014/296510)
Yaxuan Lv (Applicant – 2014/296504)
The Crown
Representation:
Counsel:
G Scragg (Liu)
M Ramage QC (Lv)
E Balodis (Crown)
Solicitors:
Jeffreys Lawyers (both Applicants)
C Hyland – Solicitor for Public Prosecutions

File Number(s): 2014/296510 (Liu); 2014/296504 (Lv)
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

9 September 2016

Before:

Baly DCJ

File Number(s):

2014/296510; 2014/296504

Judgment

HOEBEN CJ at CL: I agree with Garling J and the orders which he proposes.
GARLING J: From 14 June 2016 to 5 July 2016, Dino Shihang Liu (“Liu”), stood trial with his wife and co-offender, Yaxuan Lv (“Ms Lv”), in the District Court at Sydney on an Indictment containing two counts.
On 5 July 2016, Liu was found not guilty of the first count on the Indictment relating to an offence of detaining a person without consent to obtain a financial advantage whilst in company, but guilty…

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 Liu v The Queen; Lv v The Queen

Details

AGLC: Liu v The Queen; Lv v The Queen [2017] NSWCCA 148
Case: [2017] NSWCCA 148
Decision Date: 17 June 2017

CaseChat Overview and Summary

Two appellants, Liu and Lv, appealed against their convictions and sentences to the High Court of Australia. The appellants were found guilty of various charges including armed robbery, false imprisonment and assault occasioning actual bodily harm. The evidence against them included admissions they made to the police during official questioning. The appellants argued that the trial judge had erred in admitting evidence of their admissions and that the convictions and sentences imposed were unsafe and unsatisfactory.

The High Court was required to consider whether the trial judge erred in admitting evidence of the appellants' admissions, and if so, whether this constituted a substantial miscarriage of justice. The Court also needed to determine whether the trial judge had erred in characterising the victim as "vulnerable" and in considering taking money as an inherent aspect of robbery in company. Finally, the Court had to consider whether the sentences imposed were appropriate in the circumstances.

The High Court found that the trial judge had erred in admitting evidence of the appellants' admissions, but this did not constitute a substantial miscarriage of justice. The Court held that the trial judge's characterisation of the victim as "vulnerable" and the consideration of taking money as an inherent aspect of robbery in company were both errors of law. However, the Court found that the sentences imposed were appropriate in the circumstances. The Court allowed the appeals against conviction in part, quashed the convictions and ordered a retrial. The Court also allowed the appeals against sentence in part, reduced the sentences and ordered re-sentencing.

The final orders of the Court were that the convictions of the appellants be quashed and that they be retried. The Court also ordered that the sentences imposed be reduced and that the appellants be re-sentenced in accordance with the Court's directions.

Orders