R v Le

Case [2000] NSWCCA 49

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     Regina v Vinh LE [2000]  NSWCCA 49 revised - 14/07/2000

FILE NUMBER(S):
60556/98

HEARING DATE(S):           25/11/99

JUDGMENT DATE:            07/03/2000

PARTIES:
Regina
Vinh LE

JUDGMENT OF:      Sully J Hulme J Hidden J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        96/21/3351

LOWER COURT JUDICIAL OFFICER:     Tupman DCJ

COUNSEL:
R. Hulme - Crown
G. P. Craddock - Applicant

SOLICITORS:
S. E. O'Connor - Crown
T. A. Murphy - Applicant

CATCHWORDS:

LEGISLATION CITED:
Evidence Act 1995 (NSW)
Criminal Appeal Rules

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60556/98

SULLY J
  HULME J
  HIDDEN J

7 March 2000

REGINA  v  Vinh LE

JUDGMENT

  1. SULLY J:   On 12 August 1998 Mr. Vinh Le, [“the appellant”], was presented for trial, in the District Court at Campbelltown and before her Honour Judge Tupman, upon an indictment containing twelve counts. Counts 1, 2, 3, 4 and 5 alleged various offences against a common victim, a Mrs. HL. Counts 6, 7 and 10 alleged, similarly, offences committed against a common victim, namely Miss TP, the daughter of Mrs. HL. Counts 8, 9, 11 and 12, also, alleged various offences against a common victim, namely JP, the son of Mrs. HL.

  2. The appellant pleaded not guilty to each count in the indictment. He was put, accordingly, upon his trial by her Honour and a jury. On 28 August 1998 the jury returned verdicts of not guilty to counts 4 and 5; and returned verdicts of guilty to each of the remaining eight counts in the indictment. On 11 December 1998 the appellant was sentenced to various terms of penal servitude. No present challenge is made to those sentences, and nothing more need now be said about them.

  3. In order to consider properly certain in particular of the grounds of appeal, it is necessary to note the following details of the twelve counts in the indictment upon which the appellant was tried.

Count Offence Alleged Date Alleged Victim
1 Sexual intercourse without consent and with knowledge of no consent Between 1 February 1996 and 29 February 1996 HL

2

Assault

Between 1 February 1996 and 29 February 1996

HL

3

Assault

Between 1 April 1996 and 31 May 1996

HL

4

Assault

Between 1 May 1996 and 31 May 1996

HL

5

Assault

Between 1 June 1996 and 30 June 1996

HL

6

Assault with an act of indecency upon a person then under the age of 16 years, namely 12 years

Between 1 June 1996 and 30 June 1996

TP

7

Sexual intercourse without consent and with knowledge of no consent, the alleged victim being a person then under the age of 16 years, namely 12 years

Between 1 June 1996 and 31 July 1996

TP

8

Assault with an act of indecency upon a child then under the age of 10 years, namely 4 years.

Between 1 May 1996 and 30 June 1996

JP

9

Assault

Between 1 July 1996 and 31 July 1996

JP

10

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Details
AGLC
R v Le [2000] NSWCCA 49
Case
[2000] NSWCCA 49
Decision Date

CaseChat Overview and Summary

The appellant in this case, R v Le, challenges the decision made by the lower court, arguing that certain evidence was improperly admitted under s.55 of the Evidence Act 1995 (NSW). The dispute revolves around the admissibility of evidence provided by Dr. Mach, a medical professional who observed injuries on the complainant, Mrs. HL, and testified about an incident where Mrs. HL claimed to have had a nosebleed and facial injury from a prior incident. The appellant argues that this evidence was not relevant as it did not directly link the appellant to the assault claimed in the indictment. The matter was heard in the higher court, which had to determine whether the trial judge erred in admitting and instructing the jury on this evidence.

The legal issue before the court was whether Dr. Mach's evidence was relevant under s.55 of the Evidence Act and if the trial judge correctly directed the jury on this evidence. The court had to consider whether the evidence, while not directly linking the appellant to the crime, could rationally affect the assessment of the probability of the existence of facts in issue, specifically the injuries claimed by Mrs. HL. Additionally, the court examined whether the lack of objection during the trial or any request for re-directions impacted the appellant's ability to challenge the admissibility of this evidence on appeal.

In examining the appellant's arguments, the court noted that no objection was made to Dr. Mach's evidence during the trial, and no re-directions were sought concerning the trial judge's instructions to the jury. The court found that Dr. Mach's evidence, although not conclusive, could be considered by the jury in assessing the credibility of Mrs. HL's claims. The trial judge had adequately directed the jury on the limitations of this evidence and its supportive role in corroborating Mrs. HL's account. Consequently, the court upheld the trial judge's decision to admit the evidence and found no error in the jury's consideration of it. The appeal was dismissed.

The court made no further orders, affirming the decision of the lower court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant now contends that this evidence should not have been led at all for the reason that it was not relevant in the sense required by s.55 of the Evidence Act. That section provides:“55(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness; or(b) the admissibility of other evidence; or(c) a failure to adduce evidence.” The first thing to be said about the submissions now made for the appellant is that no objection was taken at trial to the leading of any part of Dr. Mach’s evidence in chief. Further, no re-directions were sought from the learned trial Judge in connection with her Honour’s directions to the jury concerning Dr. Mach’s evidence. Her Honour dealt with Dr. Mach’s evidence at a point in her Honour’s summing up where her Honour was dealing with Count 2 in the indictment. The relevant directions are succinct and are as follows:“The Crown also relies on some other evidence as supportive of Mrs. HL’s - that part of Mrs. HL’s evidence in which she claims she received a bleeding nose and some injury to her face as a result of this assault. The Crown relies in regard on the evidence of Doctor Mach who I have already referred to in relation to conducting the vaginal examination on 30 April 1996 but you might also remember her evidence that she took some notes of what Mrs. HL told her had been an accident a few weeks previously in which she hit her nose on something, which she did not explain, and had a nose bleed. Doctor Mach you will remember said that she could still see some dried blood in Mrs. HL’s nose on that occasion and also observed that she had a small conjunctival haemorrhage which she said was an obvious red blood mark in her eye which Doctor Mach thought was as a result of an injury. You would be entitled to use this evidence as supportive of that part of Mrs. HL’s allegation claiming that she received a bloody nose and some injury to her eye and face as a result of being punched by the accused on this occasion. It alone of course could not convict the accused of this count because it does not link the accused to this count in the indictment.You might on the other hand however think that the findings made by Dr. Mach on 30 April 1996 did not tend to support this part of Mrs. HL’s evidence in relation to this count because of the time that had elapsed between these allegations in the count being February 1996 and the examination on 30 April 1996.You might also think that the explanation given by Mrs. HL to Doctor Mach that she had had an accident in which she hit her nose on something which caused it to bleed as tending to lessen the supportive value of this evidence of Mrs. HL. On the other hand you might think that this explanation by Mrs. HL to Doctor Mach is of little relevance in assisting you to determine whether or not these findings of Doctor Mach are supportive of Mrs. HL’s evidence given Mrs. HL’s other evidence that she was reluctant to discuss such issues relating to her private relationships with outsiders.” [Summing-up at 23,24]

Decision

Reasons for decision

HULME J

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Ratio Decidendi

Legal Principle Established

Established by: HULME J

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