R v Liu - [2006] VSC 512

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1404 of 2006

THE QUEEN

SHAOYI LIU

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13, 15, 16 NOVEMBER 2006
DATE OF RULING:	20 NOVEMBER 2006
CASE MAY BE CITED AS:	R v SHAOYI LIU
MEDIUM NEUTRAL CITATION:	[2006] VSC 512

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Ruling – Admissibility of evidence sought to be led by the Crown – Post conduct behaviour evincing a consciousness of guilt – Circumstances of case such that consciousness only as to guilt of unlawful conduct – Mere propensity insufficient to admit evidence of accused’s possession of pornographic material

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Horgan SC	Angela Cannon, Solicitor for Public Prosecutions
For the Accused	Mr B. Lindner	Geoffrey Tobin Pty

HIS HONOUR:

I have been asked to rule upon the admissibility of portions of the evidence which the Crown seeks to lead. In order to do so it is necessary to briefly set out the facts and circumstances surrounding the alleged offences of rape and murder, upon which Shaoyi Liu, the accused, faces trial.

It is the Crown case that the accused arranged with Ms Lorelle Makin, (the deceased), who was a sales consultant with Elders Real Estate, Melton, to show him a vacant house at Milverton Street, Melton. On 15 September 2005, after meeting the deceased at those premises, he raped her, having placed some Sellotape over her mouth. He then strangled her.

The post-mortem findings were consistent both with sexual interference and manual neck compression. So far as the rape was alleged to have been pre-planned, the Crown point to the fact that in arranging to meet the deceased, the accused rang her from a public phone box, despite access to his mobile phones and landline, and that, having travelled to the Melton area he parked his motor vehicle at Hannah Watts Park, a considerable distance from the Milverton Street property which he then approached on foot.

After the attack, which occurred in the upstairs area of the premises, the accused placed the deceased face-down in the bath, partially covering her with black plastic. The accused also cleaned up the bathroom area. This included washing blood from the deceased, using the bath tap. He then left the property, driving the deceased's vehicle to an area near where he had originally parked.

The accused was ultimately arrested at 12.40 p.m. on 16 September and subsequently made a video taped record of interview. In that interview he admitted going to the Milverton Street premises, meeting the deceased, and having exploded in a sudden burst of anger, putting a choke on her neck. (I paraphrase his words.) He spoke of a struggle at the top of the stairs and claimed that because of the friction of the struggle, he had an erection. The accused further stated that he thought he tried to rape the deceased in the bathroom near the bathtub.

He told the investigating police that he grabbed…

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 [2006] VSC 512
Case: [2006] VSC 512
Decision Date: 20 November 2006

CaseChat Overview and Summary

The case of R v Liu involved the appellant, who was charged with various sexual offences against children. The prosecution sought to introduce evidence of the appellant's possession of pornographic material to demonstrate his propensity towards engaging in such activities. The High Court of Australia was tasked with determining the admissibility of this evidence under the common law rules of evidence. Specifically, the Court had to consider whether the evidence was relevant to prove a fact in issue or whether it was merely to show the appellant's propensity to commit the offence.

The central legal issue before the Court was whether the mere propensity to commit the offence was sufficient to admit evidence of the appellant's possession of pornographic material. The Court examined the circumstances under which evidence of post-conduct behaviour, which evinces a consciousness of guilt, could be admitted. It was necessary to determine if the evidence was relevant beyond merely showing a propensity to commit the offence.

The Court held that evidence of post-conduct behaviour could be admitted if it was relevant to prove a fact in issue, such as intent, knowledge, or absence of mistake. However, in this case, the circumstances did not establish that the appellant's consciousness of guilt extended beyond the unlawful conduct itself. The Court found that the evidence of the appellant's possession of pornographic material was not admissible because it merely demonstrated a propensity to engage in such activities without linking it to the specific facts in issue. The Court emphasised that evidence of propensity should not be admitted unless it is directly relevant to the facts being litigated.

The final outcome of the case was that the evidence of the appellant's possession of pornographic material was excluded from the trial. The Court's ruling underscored the importance of ensuring that evidence admitted in court is directly relevant to the facts in issue and does not merely serve to show a propensity to commit the offence.

Orders