R v. Liu - [2007] QCA 113

SUPREME COURT OF QUEENSLAND

CITATION:

R v Liu [2007] QCA 113

PARTIES:

R
v
LIU, Wei Shan
(appellant)

FILE NO/S:

CA No 354 of 2006
DC No 2049 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

5 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2007

JUDGES:

Williams and Holmes JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1. Appeal allowed
2. Re-trial ordered

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where the appellant was involved in cheating while playing the card game mini-baccarat at a casino – where the appellant was convicted of fraud after a trial – where at trial, pursuant to a pre-trial ruling, an expert witness was permitted to give evidence regarding the game of mini-baccarat and also the significance of hand movements made by the appellant whilst playing the game – whether the opinions went beyond the boundaries of expert evidence – whether the opinions went beyond what was permitted in the pre-trial ruling

Criminal Code Act 1899 (Qld), s 590AA

Clark v Ryan (1960) 103 CLR 486, considered
R v Griffith[1995] QCA 159; [1997] 2 Qd R 524, cited
R v Beattie (2001) 127 A Crim R 250, cited
R v Hanson[1995] QCA 385; CA No 6 of 1995, 29 August 1995, cited
R v CL Lam, Truong, Duong and VT Lam [2001] QCA 279; (2001) 121 A Crim R 272, applied
Shepherd v The Queen (1990) 170 CLR 573, considered
Smith v The Queen (2001) 206 CLR 650, cited

COUNSEL:

P J Davis, with M J A Dight, for the appellant
R J Pointing for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The background to this appeal is fully set out in the reasons for judgment of Holmes JA which I have had the advantage of reading.

In addition to the passages from the evidence of Tootell quoted by her Honour I would add that on a number of occasions in the course of his evidence he said that something he observed on the video was “consistent with the fact that he had a card concealed under that hand.” Further, in answer to a question during evidence in chief (again with reference to what was seen on the video) he said:

“Throughout that occasion in my opinion Mr Zhao's hand actions give him the opportunity consistent with the fact that he has a card concealed under his hands and throughout that period of time again his actions are consistent with giving the opportunity and are consistent with him actually concealing cards under his hand and swapping cards with a card that he has concealed under his hand.”

I agree with Holmes JA that in the passages quoted in her…

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. Liu

Details

AGLC: R v Liu [2007] QCA 113
Case: [2007] QCA 113
Decision Date: 5 April 2007

CaseChat Overview and Summary

In this case, the appellant was convicted of fraud after being involved in cheating while playing mini-baccarat at a casino. The appellant appealed against his conviction on the basis that the trial judge had erred in admitting evidence from an expert witness on the game of mini-baccarat and the significance of certain hand movements made by the appellant during the game. The legal issue at hand was whether the expert evidence went beyond the boundaries of expert evidence and exceeded what was permitted in the pre-trial ruling.

The court found that the expert witness's evidence went beyond the scope of what was permitted in the pre-trial ruling. The court held that the expert's opinions on the significance of the appellant's hand movements went beyond what was permitted and constituted an invasion of the judicial function. The court further held that the trial judge should have exercised his discretion to exclude the evidence that exceeded the pre-trial ruling. The court concluded that the admission of the impermissible evidence was a significant error that affected the appellant's right to a fair trial, and therefore, the appeal was allowed, and a re-trial was ordered.

The court did not make any further orders beyond the allowance of the appeal and the ordering of a re-trial. The appellant's conviction was quashed, and the matter was remitted to the trial court for a re-trial without the inadmissible evidence. The court's decision highlights the importance of the trial judge's role in exercising their discretion to admit or exclude evidence in criminal trials and the need for expert evidence to remain within the boundaries set by the court.

Orders

Orders of the court

1. Appeal allowed

2. Re-trial ordered

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Liu [2007] QCA 113
PARTIES:	R v LIU, Wei Shan (appellant)
FILE NO/S:	CA No 354 of 2006 DC No 2049 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	5 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2007
JUDGES:	Williams and Holmes JJA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. Appeal allowed 2. Re-trial ordered
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where the appellant was involved in cheating while playing the card game mini-baccarat at a casino – where the appellant was convicted of fraud after a trial – where at trial, pursuant to a pre-trial ruling, an expert witness was permitted to give evidence regarding the game of mini-baccarat and also the significance of hand movements made by the appellant whilst playing the game – whether the opinions went beyond the boundaries of expert evidence – whether the opinions went beyond what was permitted in the pre-trial ruling Criminal Code Act 1899 (Qld), s 590AA Clark v Ryan (1960) 103 CLR 486, considered R v Griffith[1995] QCA 159; [1997] 2 Qd R 524, cited R v Beattie (2001) 127 A Crim R 250, cited R v Hanson[1995] QCA 385; CA No 6 of 1995, 29 August 1995, cited R v CL Lam, Truong, Duong and VT Lam [2001] QCA 279; (2001) 121 A Crim R 272, applied Shepherd v The Queen (1990) 170 CLR 573, considered Smith v The Queen (2001) 206 CLR 650, cited
COUNSEL:	P J Davis, with M J A Dight, for the appellant R J Pointing for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent