R v Li - [2021] QDC 105

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Li [2021] QDC 105
PARTIES:	THE QUEEN (respondent) v JIN ZXI LI (applicant)
FILE NO:	Dc No 961 of 19
DIVISION:	Criminal
PROCEEDING:	Burnett AM DCJ
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 June 2021
DELIVERED AT:	Brisbane
HEARING DATE:	29 April 2021
JUDGE:	Burnett AM DCJ
ORDER:	1. That the record of interview dated 18 November 2015 be excluded. 2. That the record of interview dated 19 November 2015 be excluded. 3. Otherwise the application is dismissed.
CATCHWORDS	EVIDENCE – RECORD OF INTERVIEW – UNDERTAKEN IN COURSE OF EXECUTION OF WARRANT – CIRCUMSTANCES IMPACTING RELIABILITY – UNFAIRNESS.
EVIDENCE – INCULPATORY STATEMENTS MADE TO CO-ACCUSED – ADMISSABILITY.
LEGISLATION:	Corporations Act 2001 (Cth) s 1043A(1), 1311(1)
Crimes Act 1914 (Cth) Part IAA s 3, 3C, 3G, 3E, 3F, 3P, Part IC 23A(5), 23B, 23E, 23G, 23N, 23P, 23S, 23V
Evidence Act 1977 (Qld) s 130
Criminal Law Amendment Act 1894 (Qld) s 10
CASES:	R v Adcock [2016] QCA 264; [2017] Qd R 469
Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384
R v Swaffield [1998] HCA 1; [1998] 192 CLR 159
R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348
Zhang v Commissioner, Australian Federal Police [2009] FCA 1170; (2009) ALR 580
R v Ciantar [2006] VSCA 263; (2006) 167 A CRIM R 504
Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
R v Boscaino [2020] QCA 275
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
Dairy Farmer Co-Operative Mills Co Ltd v Aquilina [1963] HCA 59; (1963) 109 CLR 458
COUNSEL:	P McGuire SC and A McGrath for the applicant L K Crowley QC and P Kinchina for the respondent
SOLICITORS:	Colin Biggers and Paisley for the applicant CDPP for the respondent

Background

The applicant/defendant is charged on indictment with six counts of insider trading contrary to the provisions of s 1043A(1) and 1311(1) Corporations Act2001 (Cth). Count 1 alleges he acquired relevant financial products (being contracts for difference),[1] whilst in possession of information not generally available, but which was market price sensitive and which information he knew to be not generally available market price sensitive information. Counts 2 to 6 inclusive allege he procured others to acquire relevant financial products upon the same basis, that is, by misusing that same market price sensitive information.
[1]CFD is a ‘derivative’ financial instrument enabling an investor to speculate on future price movements in an underlying security without acquiring ownership in the security permitting the trader to leverage gains (and commensurately also losses) upon gains (or losses) from price movements in the underlying security.
The offences are alleged to have occurred…

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 Li

Details

AGLC: R v Li [2021] QDC 105
Case: [2021] QDC 105
Decision Date: 11 June 2021

CaseChat Overview and Summary

In the case of R v Li, the matter before the court involved the admissibility of a record of interview (ROI) obtained under specific circumstances. The court had to decide whether the ROI was reliable and admissible as evidence under the Evidence Act 1977 (Qld), and whether its exclusion would be necessary to ensure fairness in the proceedings.

The primary legal issues were whether the ROI was fundamentally unreliable due to the circumstances under which it was conducted, and whether its exclusion would be necessary to prevent unfairness to the accused. The court considered whether the conduct of the interview impacted the reliability of the evidence and whether the interview's circumstances rendered it unfair to the accused, warranting its exclusion under Section 130 of the Evidence Act 1977 (Qld).

The court found that the ROI was fundamentally unreliable due to significant misunderstandings between the interviewer and the applicant, and because the interview conditions, including the presence of multiple officers and the language barriers, affected the applicant's ability to be heard and understood. The court concluded that the ROI lacked a contextual framework and was therefore unreliable. Furthermore, the court found that the conduct of the interview violated the terms of the search warrant, making it obtained contrary to the public interest. Consequently, the court decided to exclude the ROI in its entirety.

In summary, the court made the following orders:
1. The record of interview dated 18 November 2015 is excluded.
2. The record of interview dated 19 November 2015 is excluded.
3. Otherwise, the application is dismissed.

Orders

Orders of the court

1. That the record of interview dated 18 November 2015 be excluded.

2. That the record of interview dated 19 November 2015 be excluded.

3. Otherwise the application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It was against that background that the warrant was executed and Mr Flynn attended upon the premises and after a short time commenced the ROI with the applicant. The ROI between Mr Flynn and the applicant took place between approximately 10.08am and 1.00pm. There were two breaks during the course of the interview with a total recording time being approximately two hours and 10 minutes. Mr Flynn was accompanied by a corroborator, Miss Jane Cam. In addition, an accredited Mandarin interpreter, Shan Ma, provided interpreting services in the Mandarin language during the interview. Miss Cam was an unaccredited interpreter and capable of providing assistance in Cantonese only. However, the applicant indicated that he preferred to converse in Mandarin. Apart from engaging the applicant for the better part of three hours the conduct of the ROI also had the collateral effect of denying him his right to observe a substantial part of the execution of the warrant as that took place around him given no less than five officers would have been devoted to that task while he was in the company of Mr Flynn, his corroborator and the interpreter.[4][4]The Crown contends this impediment upon the applicant’s rights was not material because any useful material recovered from its perspective was found either side of the interview. Whilst that might be so, the fact remains the applicant was denied his right to observe whist the interview progressed.Court’s discretion to exclude evidence Section 130 of the Evidence Act 1977 (Qld) provides:“Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.” In R v Adcock[5] Morrison JA (with whom Gotterson JA and North J agreed) stated with approval at [67] a quote from R v D[6]:“With respect to s 130, the unfairness invoking the exercise of the statutory discretion would be the variety discussed in R v Swaffield (1997-1998) 192 CLR 159, and particularly at 189; namely a concern with not jeopardising an accused person’s right to receive a fair trial.”[5][2016] QCA 264.[6][2003] QCA 151 at [62]. The approach to admissibility has been extensively considered. Here it is governed by operation of both common law and the provisions of the Evidence Act1977 (Qld). Generally,“If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury’s consideration.”[7] [7]Festa v The Queen [2001] HCA 72 at [14]. Although the ROI contains a significant body of material which might be considered irrelevant and confusing it includes some relevant material, especially relevant admissions concerning funds transfers evident in the applicant’s bank accounts together with statements by him concerning transactions by related parties which were facilitated by him. There are other matters said to be included in the ROI which might also be relevant, subject to how they are interpreted, such as information concerning relevant relationships.

Decision

Reasons for decision

From that passage it seems self-evident that the applicant and Mr Flynn were not of one mind in relation to certain matters. For instance, through the interpreter, the applicant said, “it seems I had myself misunderstood by you”. Mr Flynn asked whether there were questions he would like to clarify and the applicant said “no”. Shortly after he then proceeded to say, “I am worried that my answers to your questions are not understood as I told how to say that?”. I think the only fair construction of this passage was that the applicant didn’t think he had been fairly interviewed because Mr Flynn hadn’t grasped many of the matters the applicant was seeking to state. Other instances can be found in the references in the footnote below.[23][23]Page 35 of 67, l 24; p 36 of 67, l 20; p 37 of 67, ll 9-13; p 65 of 67, ll 7-66 of 67, l 9.Conclusion A significant part of the ROI should be excluded because it is in my view fundamentally unreliable. What is left of the ROI are piecemeal fragments, some of which are relevant, but which lack contextual framework. When considered overall, particularly in light of the applicant’s complaints about him being misunderstood, I am satisfied that the ROI is an unreliable document and on that ground alone ought to be excluded.Contrary to public interest It was submitted for the applicant that the ROI ought to be excluded because it was obtained in an unlawful or improper way and therefore obtained contrary to the public interest. In particular, it was contended the conduct of the ROI on warrant premises and during the execution of the warrant violated the terms of the search warrant and exceeded the statutory authority that was invested in the investigators through Part 1AA of the Crimes Act 1914 (Cth). It was submitted it arose from an undisclosed ulterior purpose for obtaining the search warrant. To that end it was submitted that Mr Flynn and Miss Cam were on the applicant’s premises by virtue of their status as “constables assisting” the constable who was responsible for executing the search warrant, namely AFP Officer Cowling. The argument proceeded that ASIC’s interviewers’ powers of investigation at that time were limited to the search and seizure powers that were authorised by the search warrant. The search warrant did not authorise them or anyone else to engage in official questioning of the applicant of the kind that occurred and at the time it occurred. It was submitted the only official questioning that could be conducted during the execution of the search warrant was that which was ancillary or incidental to the execution of the warrant itself. In their submissions, counsel for the applicant contended the only bases upon which the ASIC officers including Mr Flynn were upon the premises, was by operation of Part 1 AA of the Crimes Act 1914 (Cth) which governs the powers of search, information gathering and arrest. In this instance, the warrant was one provided for in s 3E which concerned a search of premises (a premise warrant) and the activities permitted pursuant to the warrant were those provided for in s 3F. So far as the premises were concerned, it provides:“3F(1)A warrant that is in force in relation to a premises authorises the executing officer or a constable assisting:(a)to enter the warrant premises and, if the premises are a …; and(b)to search for and record fingerprints found at the premises and to take samples of things found the premises for forensic purposes; and(c)to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises.…”

Ratio Decidendi

Legal Principle Established

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