Regina v Li

Case [2002] NSWCCA 215
CITATION: Regina v Li [2002] NSWCCA 215
FILE NUMBER(S): CCA 60080/02
HEARING DATE(S): 22 May 2002
JUDGMENT DATE:
22 May 2002

PARTIES :
Alan Siu Lun Li (Appellant)
Regina (Cth) (Respondent)
JUDGMENT OF: Ipp AJA at 1; Dunford J at 7; Burchett AJ at 2
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S) : 99/11/0532
LOWER COURT JUDICIAL
OFFICER :		 Shadbolt DCJ
COUNSEL : P Bodor QC and G Stanton (Appellant)
K A Chapple (Crown/Respondent)
SOLICITORS: J Rigg (Appellant)
Commonwealth DPP (Crown/Respondent)
LEGISLATION CITED: Criminal Appeal Act 1912, s 5F(3)
CASES CITED:
 Regina v Matovski (1989) 15 NSWLR 720
DECISION: Leave to appeal refused.



                          60080/02

                          IPP AJA
                          DUNFORD J
                          BURCHETT AJ

                          Wednesday 22 May 2002
REGINA (CTH) v ALAN SIU LUN LI
Judgment

1 IPP AJA: In this matter I ask Burchett AJ to deliver the first judgment.

2 BURCHETT AJ: This is an application for leave to appeal from an interlocutory decision in a criminal prosecution pending in the District Court. Shadbolt DCJ, whose order is sought to be challenged, dismissed an application "for a permanent stay of the indictment to be presented against the [applicant]".

3 Leave is required by s 5F(3)(a) of the Criminal Appeal Act 1912. In Regina v Matovski (1989) 15 NSWLR 720, this Court dealt with a similar application, though the circumstances said to support it were different. When refusing leave, Gleeson CJ (with whom Lee CJ at CL and Grove J agreed), referred to the Court's discretion exercisable in the interests of justice, but added (at 723):

          "Equally, however, it is necessary to attend to the statutory requirement that leave be granted where an appeal against an interlocutory judgment is contemplated by a party to proceedings other than one of the persons mentioned in s 5F(2). The present case is not in my view one in which leave to appeal should be granted. I can see no error of law or discretionary principle in the reasons for judgment of the learned trial judge. He took a particular view of the facts after hearing detailed evidence and argument and it seems to be a view of the facts which was at least open to him. The case is not one in which in my view the interests of justice require intervention by this Court at this stage and I would propose that the application for leave to appeal be dismissed."

4 The applicant's counsel here quite properly concedes:

          "Clearly, it was open to his Honour to find the facts that he did."

      To that should be added that the findings, based on oral evidence and lengthy cross-examination, led directly to the dismissal of the application for a stay. In that situation, leave would not generally be appropriate. Counsel urged that the interlocutory decision, if left standing, will impede the applicant's defence at trial. But I do not accept that this is so.

5 In my opinion, leave should be refused.

6 IPP AJA: I agree.

7 DUNFORD J: I also agree.

8 IPP AJA: The order of the court will be that leave is refused.

      ***********************
Details
AGLC
Regina v Li [2002] NSWCCA 215
Case
[2002] NSWCCA 215
Decision Date

CaseChat Overview and Summary

The appeal in Regina v Li was heard by Ipp AJA, Dunford J, and Burchett AJ in the Court of Criminal Appeal of New South Wales. The appellant, Alan Siu Lun Li, sought leave to appeal against the decision of Shadbolt DCJ in the District Court, who dismissed an application for a permanent stay of the indictment against the appellant. The appeal was pursuant to section 5F(3)(a) of the Criminal Appeal Act 1912. The central issue for the Court of Criminal Appeal was whether the District Court judge erred in dismissing the application for a stay, and whether the refusal to grant leave to appeal would impede the appellant's defence at the trial.

The Court of Criminal Appeal referenced the case of Regina v Matovski, where a similar application was refused. Gleeson CJ stated that the Court exercises its discretion in the interests of justice, but the statutory requirement for leave to appeal must also be considered. The Court found that the District Court judge's findings were open to him, and based on the evidence and arguments presented, the decision to dismiss the application for a stay was reasonable. The appellant's counsel conceded that the findings were open to the District Court judge. Therefore, the Court of Criminal Appeal held that there was no error of law or discretionary principle in the District Court judge's reasons for judgment, and the appeal against the interlocutory decision should not proceed at that stage.

Given the circumstances, the Court of Criminal Appeal found that leave to appeal should be refused. Ipp AJA, Dunford J, and Burchett AJ all agreed that the application for leave to appeal should be dismissed, as the District Court judge's findings were open to him and there was no error of law or discretionary principle in his reasons for judgment. The Court held that the refusal to grant leave to appeal would not impede the appellant's defence at the trial. Therefore, the Court of Criminal Appeal dismissed the application for leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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