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Luo v The Queen

Luo v The Queen

Case [2020] WASCA 184 6 November 2020

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LUO -v- THE QUEEN [2020] WASCA 184
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   20 JULY 2020
DELIVERED          :   6 NOVEMBER 2020
FILE NO/S:   CACR 140 of 2018
BETWEEN:   JIE LUO
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   FIANNACA J
Citation: THE QUEEN v LUO [2018] WASC 226
File Number            :   INS 62 of 2017

Catchwords:

Criminal law - Appeal against conviction - Evidence - Admissibility of evidence of admissions by an accused - Whether admissions can be said to be inadmissible on the ground that they were not voluntarily made because the accused did not understand the police caution - Whether discretion to exclude voluntary admissions should be exercised on fairness grounds

Legislation:

Crimes Act 1914 (Cth), s 23F, s 23G, s 23N, s 23P, s 23S

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	A E Eyers & K Kumar
Respondent	:	D L Renton & J A Johnston

Solicitors:

Appellant	:	Anthony Eyers
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

AB v R [2014] NSWCCA 339
Attorney General (NSW) v Jackson (1906) 3 CLR 730
Bunning v Cross (1978) 141 CLR 54
Clarke v The Queen [2015] NSWCCA 232; (2015) 254 A Crim R 150
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Em v The Queen [2006] NSWCCA 336
EYO v The State of Western Australia [2019] WASCA 129
Heiss v The Queen (1992) 2 NTLR 150
Hordern v The Queen [2019] NSWCCA 138
House v The King (1936) 55 CLR 499
Kelly v The State of Western Australia [2017] WASCA 221
McDermott v The King (1948) 76 CLR 501
R v Anunga (1976) 11 ALR 412
R v Azar (1991) 56 A Crim R 414
R v Ireland (1970) 126 CLR 321
R v Kyriakou (1987) 29 A Crim R 50
R v O'Dempsey [2018] QCA 364
R v O'Donoghue (1988) 34 A Crim R 397
R v Swaffield (1998) 192 CLR 159
TH v The Queen [2019] NSWCCA 184
The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Willis v The Queen [2016] VSCA 176; (2016) 261 A Crim R 151

JUDGMENT OF THE COURT:

Summary

On 14 December 2017, the appellant was convicted of one count of importing a commercial quantity of a border controlled drug, namely methamphetamine. On 28 June 2018, the appellant was sentenced to 23 years' imprisonment, with a 15 year non-parole period.
The offence was allegedly committed on 1 May 2016, when at least 182.41 kg (145.6 kg pure weight) of methamphetamine was landed on the Western Australian coast by a tender launched from a fishing vessel. The drugs were collected by members of a…

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 Luo v The Queen

Details

AGLC: Luo v The Queen [2020] WASCA 184
Case: [2020] WASCA 184
Decision Date: 6 NOVEMBER 2020

CaseChat Overview and Summary

The case of Luo v The Queen involved an appeal against the appellant's conviction for drug trafficking offences. The appellant argued that his admissions to police during interrogation should not have been admitted as evidence due to the fact that he did not fully understand the police caution. The High Court of Australia was tasked with determining whether the trial judge should have exercised their discretion to exclude the admissions on fairness grounds.

The central legal issue was whether the appellant's admissions to the police were voluntary and, therefore, admissible as evidence. The appellant contended that he did not fully understand the police caution, which was administered in English, his second language. The appellant argued that the trial judge should have exercised their discretion to exclude the admissions on the basis of fairness. The central issue for the court was whether the trial judge's failure to exclude the admissions was an error of law, warranting a new trial.

The High Court held that the trial judge's decision not to exclude the admissions was not an error of law. The court found that the appellant's understanding of the police caution was not as significant as whether the appellant voluntarily made the admissions. The court held that the trial judge had correctly considered the appellant's understanding of the police caution, but ultimately found that the appellant's admissions were voluntary and therefore admissible. The court found that the trial judge did not err in exercising their discretion not to exclude the admissions on fairness grounds.

The High Court dismissed the appeal and affirmed the appellant's conviction. The court held that the trial judge's decision not to exclude the admissions was not an error of law and that the appellant's admissions were properly admitted as evidence. The court found that the appellant's understanding of the police caution was not the only factor to be considered in determining whether the admissions were voluntary, and that the trial judge had correctly exercised their discretion not to exclude the admissions on fairness grounds.

Orders