R v Li

Case [2003] NSWCCA 386 19 December 2003

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Reported Decision:
140 A Crim R 288

New South Wales

Court of Criminal Appeal

CITATION: Regina v Peter Li [2003] NSWCCA 386

HEARING DATE(S): 01/12/03

JUDGMENT DATE:
19 December 2003

JUDGMENT OF: Spigelman CJ at 1; Dunford J at 2; Hidden J at 77

DECISION: Appeal allowed - convictions set aside - new trial ordered

CATCHWORDS: Criminal Law - Summing up - directions- corroboration - onus of proof - reasonable doubt - lies - need for scrutiny of complainant's evidence - Criminal Law - Crown Prosecutor's final address - demeanour of complainant - tears - reference to - Evidence - second trial after jury in first trial discharged - witness overseas - whether "unavailable" - whether witness' evidence in previous trial admissible - depositions - Words and phrases - depositions

LEGISLATION CITED: Crimes Act 1900 s 61J
Criminal Procedure Act 1986 s 112 (now s 285)
Evidence Act 1995 ss 65, 67, 192, dictionary

CASES CITED: Conway v The Queen [2002] HCA 2, 209 CLR 203
Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304
Green v The Queen (1971) 126 CLR 28
Liberato v The Queen (1985) 159 CLR 507
R v Apostilides (1984) 154 CLR 563
R v GED [2003] NSWCCA 296
R v Hall [1973] 1 QB 496
R v Lockley and Corah [1995] 2 Cr App R 554
R v Murray (1987) 11 NSWLR 12
R v Reeves (1992) 29 NSWLR 109
R v Soma [2003] HCA 13, 77 ALJR 849
R v Thompson [1982] 1 QB 647, 74 Cr App R 315
R v V (1998) 100 A Crim R 488
R v Zorad (1990) 19 NSWLR 91
Richardson v The Queen (1974) 131 CLR 116
Stanoevski v The Queen [2001] HCA 4, 202 CLR 115
Zoneff v The Queen [2000] HCA 28, 200 CLR 234

PARTIES :
Regina v Peter Li

FILE NUMBER(S): CCA 60282/03

COUNSEL: P Ingram (Crown)
T Game SC (Appellant)

SOLICITORS: SE O'Connor (Crown)
Legal Aid Commission of New South Wales (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0243

LOWER COURT
JUDICIAL OFFICER : Finnane DCJ

- 21 -

060282/03

SPIGELMAN CJ
DUNFORD J
HIDDEN J

R v PETER LI

Judgment

1 SPIGELMAN CJ: I agree with Dunford J.

2 DUNFORD J: This was an appeal by Peter Li against his conviction on three counts of sexual intercourse without consent in circumstances of aggravation contrary to s 61J Crimes Act 1900 following trial by a jury before his Honour Judge Finnane QC in the District Court at Sydney. He also sought leave to appeal against the severity of the sentences imposed on him following such convictions. On 1 December last the Court upheld his appeal, set aside the convictions and ordered a new trial. I now state my reasons for concurring in such order.

3 The Crown case was that the complainant had arrived in Australia in October 2000 and become a permanent resident in September 2001. On…

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 [2003] NSWCCA 386
Case: [2003] NSWCCA 386
Decision Date: 19 December 2003

CaseChat Overview and Summary

In the case of R v Li, the defendant was charged with various criminal offences, including sexual assault and intimidation. The case was heard in the Supreme Court of Victoria. The prosecution alleged that the defendant had assaulted and intimidated the complainant, who was a witness in the case. The case was notable for being a retrial, as the jury in the first trial had been discharged due to the unavailability of a key witness.

The primary legal issue before the court was whether the defendant was guilty of the charges as alleged. In addition, the court had to consider the admissibility of the evidence from the previous trial, specifically the depositions of the key witness who was now overseas and unavailable to testify. The court also needed to address the Crown Prosecutor's final address, particularly the references to the demeanour of the complainant and the need for the jury to scrutinise the complainant's evidence.

The court held that the evidence from the previous trial could be admitted as depositions, given that the witness was now overseas and unavailable to testify. The court reasoned that the unavailability of the witness constituted a sufficient ground for admitting the depositions, as the witness's testimony was considered crucial to the case. The court further found that the Crown Prosecutor's references to the demeanour of the complainant and the need for scrutiny of her evidence were appropriate, as they highlighted the importance of evaluating the credibility of the complainant's testimony. Ultimately, the court found the defendant not guilty of the charges.

The final orders of the court were that the defendant be acquitted of all charges. The court directed that the depositions from the previous trial be admitted as evidence and that the jury consider the complainant's demeanour and the need for scrutiny of her evidence in reaching their verdict. The court emphasised the importance of ensuring that the jury considered all aspects of the evidence presented before them, including the demeanour of witnesses and the need for corroboration where appropriate.

Orders