Wu v The Queen - [2014] VSCA 79

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0148

YENG JUN WU
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	WEINBERG, TATE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	3 March 2014
DATE OF JUDGMENT	24 April 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 79
JUDGMENT APPEALED FROM	R v Wu [2013] VSC 375 (T Forrest J)

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CRIMINAL LAW — Application for leave to appeal against conviction — Applicant convicted after jury trial on one count of murder — Case against applicant circumstantial — Whether jury verdict unsafe and unsatisfactory having regard to the evidence — Applicant sought to disaggregate and explain away individual components of circumstantial case — When elements of circumstantial case taken together, Crown case very strong — Verdict reasonably open to jury — Verdict not unsafe and unsatisfactory — Application dismissed.

CRIMINAL LAW — Application for leave to appeal against conviction — Applicant convicted after jury trial on one count of murder — Zoneff direction made at trial regarding permissible use of lies told by applicant and his post-offence conduct — Giving of Zoneff direction agreed to by applicant’s trial counsel and no exception taken to charge to jury — Charge to jury fair and appropriate — Application dismissed.

CRIMINAL LAW — Application for leave to appeal against sentence — Applicant convicted of one count of murder — Offending involved brutal maiming and then killing with heavy edged weapon — Victim’s brain removed from cranial vault after killing — Applicant sentenced to 27 years’ imprisonment with a non-parole period of 21 years — Whether sentence manifestly excessive — Sentence not manifestly excessive — Application refused.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr C B Boyce	Grigor Lawyers
For the Crown	Mr B F Kissane with Ms K Argiropoulos	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree with Coghlan JA.

TATE JA:

I have had the benefit of reading, in draft form, the reasons of Coghlan JA. I agree, for the reasons his Honour gives, that the applications for leave to appeal against conviction and sentence should both be dismissed.

COGHLAN JA:

On 28 June 2013, the applicant was convicted by a jury, in the Supreme Court at Melbourne, on one count of murder. On 9 July 2013, he was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Murder [Common law] Life [Crimes Act 1958 (Vic) s 3] 27 years N/A

Total Effective Sentence: 27 years’ imprisonment

Non-Parole Period: 21 years

Pre-sentence Detention Declared: 497 days

Other orders: - forfeiture: Confiscation Act 1997 s 78(1)
- retention of forensic sample: Crimes Act 1958 s 464ZFB(1)

By notice dated 6 August 2013, the applicant seeks leave to appeal against conviction on the following grounds:

1.The verdict of guilty is unreasonable or cannot be supported having regard to the evidence.
2.The learned trial judge erred by directing the jury that they could reason that the following alleged lies told by the applicant could be used to help assess…

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 Wu v The Queen

Details

AGLC: Wu v The Queen [2014] VSCA 79
Case: [2014] VSCA 79
Decision Date: 24 April 2014

CaseChat Overview and Summary

The applicant, Wu, appealed against both his conviction and sentence following a jury trial where he was found guilty of one count of murder. The primary legal issue before the court was whether the jury's verdict was unsafe and unsatisfactory in light of the evidence presented. The applicant attempted to challenge the reliability of the jury's verdict by dissecting and questioning individual pieces of circumstantial evidence. However, when all elements of the circumstantial case were considered together, the Crown's case was found to be very strong, and the verdict was reasonably open to the jury. Therefore, the court found the verdict not to be unsafe and unsatisfactory, dismissing the application for leave to appeal against the conviction.

Further, the court considered the applicant's challenge to the Zoneff direction given by the trial judge regarding the use of lies told by the applicant and his post-offence conduct. The applicant's trial counsel had agreed to the direction being given, and no exception was taken to the charge to the jury. The court held that the charge to the jury was fair and appropriate, and the application for leave to appeal against the conviction on this basis was also dismissed.

Lastly, the applicant contested the severity of his sentence, arguing it was manifestly excessive. The court found that the offending involved brutal maiming and killing with a heavy-edged weapon, including the removal of the victim's brain from the cranial vault after the killing. Considering these factors, the court determined that the sentence of 27 years' imprisonment with a non-parole period of 21 years was not manifestly excessive. The application for leave to appeal against the sentence was therefore refused.

Orders