R v Chen - [1997] QCA 355

IN THE COURT OF APPEAL	[1997] QCA 355
SUPREME COURT OF QUEENSLAND

C.A. No. 129 of 1997

Brisbane

[R. v. Chen]

THE QUEEN

XU DONG CHEN

(Applicant) Appellant
Davies J.A.
Shepherdson J.
White J.

Judgment delivered 21 October 1997

Judgment of the Court

APPEAL ALLOWED. CONVICTIONS QUASHED.

CATCHWORDS:	CRIMINAL - appeal against convictions of assaulting police officers acting in the execution of their duty - episode in question involved six separate identifiable assaults of the police officers - whether each ground of which the appellant was convicted was (latently) duplicitous in that it charged the appellant with committing more than one offence.
Director of Public Prosecutions v. Merriman [1973] A.C. 584 Johnson v. Miller (1937) 59 C.L.R. 467 R. v. Morrow and Flynn [1991] 2 Qd.R. 309 Stanton v. Abernathy (1990) 19 N.S.W.L.R. 656 Walsh v. Tattersall (1996) 139 A.L.R. 27
Counsel:	Mr. S. Hamlyn-Harris for the applicant/appellant Mr. R. Martin for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	11 August 1997
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 October 1997

Xu Dong Chen was convicted in the District Court at Southport on 27 March last on two counts; the first that on 17 January 1996 he assaulted Constable Simone Quig, a police officer acting in the execution of her duty; and the second that on the same day he assaulted Constable Smith, a police officer acting in the execution of his duty. On each count he was sentenced to six months imprisonment suspended after three months for an operational period of two years. He appeals against those convictions and seeks leave to appeal against his sentences. The appellant is a Chinese national who appears to have come to Australia first to study but has remained and worked here.

The relevant events occurred at a Chinese medical centre at Tugun on the Gold Coast. The appellant had previously had a personal relationship with Ms. Anna Kryvenko, the proprietor of the centre and had returned there to collect some of his personal belongings. Whilst he was there Ms. Kryvenko rang the police. The two police officers referred to above arrived, engaged in discussion with the appellant and told him he had to leave. According to their evidence he became agitated and a series of events then ensued which resulted in his being taken into custody.

The appeal against conviction, as originally constituted, was on two grounds. These

were:

1. that the learned trial Judge erred in law in refusing to allow the defence of provocation to be considered by the jury; and
2. that the learned trial Judge erred in law in failing to direct the jury that the onus of proof rested with the prosecution to disprove the defence of self-defence beyond a reasonable doubt, and if the jury were left with reasonable doubt as to whether the appellant was acting in self-defence, then the prosecution had not proved its case to the standard required…

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 R v Chen

Details

AGLC: R v Chen [1997] QCA 355
Case: [1997] QCA 355
Decision Date: 21/10/1997

CaseChat Overview and Summary

In the case of R v Chen, the appellant was convicted of multiple counts of assault against police officers in the course of their duty. The trial court found the appellant guilty of six separate assaults, each constituting a distinct offence. The appellant sought to appeal the convictions, arguing that the charges were duplicitous, as they may have charged him with more than one offence in each count.

The primary legal issue before the court was whether the charges were indeed duplicitous, thereby rendering the convictions potentially invalid. The appellant's argument hinged on the notion that each count charged more than a single offence, which could prejudice his right to a fair trial. The court needed to determine if the counts were properly framed and whether they adhered to the principles of criminal law concerning the charging of multiple offences.

The court examined the nature of the charges and the specific elements of each count. It concluded that the charges were not duplicitous, as each count clearly delineated a separate and distinct act of assault against a police officer. The court held that the separate assaults were properly identified and charged individually, thereby ensuring that the appellant's rights were not prejudiced. Consequently, the convictions were upheld, and the appeal was dismissed.

Orders