R v Huang

Case [2019] SASCFC 38

Supreme Court of South Australia

(Court of Criminal Appeal: Criminal)

R v HUANG

[2019] SASCFC 38

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Auxiliary Justice Rice)

12 April 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

The appellant, along with two co-accused, was tried by a jury in the District Court for aggravated kidnapping (count one) and aggravated causing harm with intent to cause harm (count two) pursuant to sections 24 and 39 of the Criminal Law Consolidation Act 1935 (SA). The appellant was convicted of both offences by a majority verdict, while his two co-accused were acquitted on both counts.

At trial, the trial Judge refused to allow the appellant to tender certain evidence to rebut the complainant’s account of how the injuries were inflicted.

Whether the primary Judge erred in refusing to admit evidence of the ‘crime scene recreation’ sought to be tendered by the appellant – whether the primary Judge erred in refusing to admit evidence of measurements of a collated screw belt and photographs of the demonstration sought to be tendered by the appellant.

Held, per Rice AJ (Kourakis CJ and Peek J agreeing), allowing the appeal:

1.  The trial Judge erred in refusing to admit the evidence of the crime scene recreation.

2.  The trial Judge erred in refusing to admit the evidence of measurements of a collated screw belt.

3.  The appellant’s convictions are set aside and the matter is to be remitted to the District Court for a new trial.

Criminal Law Consolidation Act 1935 (SA) s 24, s 39, referred to.
Evans v R (2007) 235 CLR 521; R v Ireland (No 1) [1970] SASR 416; R v Ireland (No 2) [1971] SASR 6; R v Trimboli (1979) 21 SASR 577; R v Simic (1980) 144 CLR 319; Melbourne v The Queen (1988-99) 198 CLR 1; R v P, S [2016] SASCFC 97; Perara-Cathcart v The Queen (2017) 260 CLR 595, considered.

R v HUANG
[2019] SASCFC 38

Court of Criminal Appeal:  Kourakis CJ, Peek J and Rice AJ

  1. KOURAKIS CJ:       I would allow the appeal.  I would order a new trial for the reasons given by Rice AJ.

  2. PEEK J:      I allow the appeal.  I agree with the orders proposed by Rice AJ and with his reasons.

    RICE AJ:

    Introduction

  3. Appeals against convictions.

  4. The appellant Wenxiong Huang, was convicted of two offences:  aggravated kidnapping (count one) and aggravated causing harm with intent to cause harm (count two).  At trial in the District Court he was jointly charged with those offences with two others, Hui Zhang (‘Zhang’) and Ren Li Lin (‘Lin’).  Zhang and Lin were acquitted by the jury.

  5. The complainant for both counts was Haoxuan Li…

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AGLC
R v Huang [2019] SASCFC 38
Case
[2019] SASCFC 38
Decision Date

CaseChat Overview and Summary

The appellant, Huang, was convicted by a jury in the District Court of South Australia of aggravated kidnapping and aggravated causing harm with intent to cause harm, contrary to sections 24 and 39 of the *Criminal Law Consolidation Act 1935* (SA). His two co-accused were acquitted of both charges. Huang appealed his convictions.

The central legal issue before the appellate court concerned the alleged improper admission or rejection of evidence, and whether this constituted a miscarriage of justice. Specifically, the appeal raised questions about the admissibility and weight of evidence relating to the appellant's belief that he was owed a significant sum of money by a third party, Rui Yang, and the circumstances surrounding the complainant's injuries.

The court considered the appellant's defence, which suggested he was owed money by Rui Yang, who had subsequently disappeared. The prosecution's case included an admission by the appellant that he had struck the complainant because his boss owed him money. The appellant also gave evidence that Rui Yang had failed to make payments for shop-fitting work, leaving the appellant significantly out of pocket, and that he had been induced to deposit $100,000 into Rui Yang's account shortly before Rui Yang went missing. The court also examined evidence from the crime scene, including photographs and the testimony of a police officer, which raised questions about the physical feasibility of the complainant's account of how his injuries were inflicted, given the confined space and the nature of the items present. The appellant suggested the complainant had a motive to lie, which the complainant denied.

The court allowed the appeal, quashed the convictions, and ordered a new trial.

Orders

Orders of the court

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Background

Background to the litigation

To understand the submissions in relation to these grounds, it is necessary to outline the events leading up to the evening of 20 May 2016.Some background The appellant had a business as a shop-fitter. The business was called Sunshine Sky and had relocated to West Thebarton Road, Thebarton in early 2015. Lin commenced working for the appellant in the second half of 2015 and Afu in February 2016. The appellant said in evidence that he was contracted by Rui Yang in about February or March 2015 to fit out a number of stores for him. Eventually the appellant began to store stock for Rui Yang at the Sunshine Sky premises at Thebarton. The appellant said that he first met the complainant in April 2015, in one of Rui Yang’s stores. The appellant said he believed the complainant to be the manager. The appellant gave evidence that the complainant visited the West Thebarton Road address quite often and that the appellant had given the complainant keys to the premises, which the complainant still had as at May 2016. The complainant denied having the keys at that time. The complainant met Tian Li (known as Joyce) in 2015 when they worked together in one of Rui Yang’s shops. As at May 2016 they were friends but have since married. Zhang said that she first met the appellant around April or May 2016 when she was looking for someone to perform renovations. Zhang went to the appellant’s office to meet with him and they spoke by telephone.Appellant being owed money by Rui Yang The evidence in support of the appellant being owed money by Rui Yang, or at least a belief by him that he was owed money, comes from a number of sources. A number of documents showed that, at the time Rui Yang disappeared, the appellant believed that Rui Yang owed him $2 million. The appellant instructed a lawyer to locate Rui Yang. It was the prosecution case that when the police attended the Thebarton address on the night of 20 May 2016, the appellant admitted that he had hit the complainant with a brush on the legs and body because his (the complainant’s) boss owed him $2 million. The appellant said in evidence that in February or March 2016 he contracted with Rui Yang for the fit-out of a number of stores and that the appellant commenced the work. The appellant also said that Rui Yang stopped making payments and the appellant was left significantly out of pocket. Rui Yang told the appellant that if the appellant deposited $100,000 in Rui Yang’s account, then ultimately Rui Yang would repay $200,000. On 24 April 2016, two days after the appellant gave Rui Yang $100,000, the appellant discovered that Rui Yang had gone missing. The appellant mentioned this to his staff and Tian Li said that Rui Yang could just have gone on holidays. It was in this context that the appellant instructed solicitors to locate Rui Yang. Efforts to find Rui Yang included the appellant going with Zhang and Lin by car to Port Lincoln or Kimba in an endeavour to find him. The appellant also came to believe that Rui Yang, and two people, Dongming Dong and Amy Zhang were involved in a visa scheme/scam together.

Evidence

Evidence Before The Court

The complainant also said he was hit to the sole of his foot; he was hit to his foot in the same way that he was hit to the back of the legs using the timber.Relevant evidence from the crime scene The crime scene was examined by Brevet Sergeant Marsh. Brevet Sergeant Marsh took a series of photographs of the scene but he did not measure the dimensions of the warehouse and office areas, the distance between various items in them, nor the size of any of the equipment located in the warehouse. The photos in Exhibit P3 (the crime scene photos) provide a reasonably comprehensive picture of the scene when the police arrived at about 11.00 pm following the telephone call by Tian Li to them. Various exhibits were found at the scene that were consistent with the complainant’s allegations but, at the same time, those exhibits were items that formed part of the appellant’s trade, equipment and materials. It should be noted that the area where the complainant was suspended and struck is very confined. The complainant had his back to the supporting frame of the forklift; that distance was not measured but the photographs suggest it is a short distance. There was an MDF timber stack close to the right front of the forklift. The ability of a person to swing and strike the complainant in the manner he alleged using the yellow pole and length of timber is quite restricted. It is yet more restricted to strike the complainant to the rear of his upper right leg. Sergeant Marsh did not lay claim to being able to ascertain dimensions from photographs. Sergeant Marsh agreed if you were able to measure the size of objects depicted in the photograph you could estimate the length of objects, whilst acknowledging that there would be some variation caused by perspective. The officer conceded ‘it’s a possibility’ that if one could calculate the distance between objects depicted in the photograph, then one could calculate the distance between objects. Sergeant Marsh was reduced to estimating distances. He said the distance between the bottom of the red tray and the yellow object in the photograph on page 9 of Exhibit P3 would probably be about a metre and therefore the distance between the forklift and the stack of MDF would be about a metre. Further, when asked whether it was fair to say that the ‘clearance area’ with which to swing something between the edge of the forklift and the MDF stack was about a metre, he said ‘I wouldn’t like to say it was less than a metre’.Was the appellant ‘set up’? Quite apart from the challenge to the complainant’s credibility based upon the manner it is said his injuries were inflicted, it was also suggested he had a motive to lie. The complainant denied being motivated to frame the appellant in order to get Rui Yang ‘off the hook’ for monies Rui Yang owed the appellant and to get Amy Zhang and Dongming Dong ‘off the hook’ because the appellant was chasing them for the money owed by Rui Yang. Further, in an endeavour to explain the injuries sustained by the complainant, a somewhat fanciful and remarkable series of propositions were put to him.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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