AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 19 December 2003

Regina v Peter Li

[2003] NSWCCA 386

Also reported as (2003) 140 A Crim R 288
Sexual offences
CRIMINAL LAW SUMMING UP DIRECTIONS CORROBORATION ONUS OF PROOF REASONABLE DOUBT

Citation: Regina v Peter Li [2003] NSWCCA 386
Court: NSW Court of Criminal Appeal
Date: 19 December 2003
Judge(s): Spigelman CJ, Dunford J, Hidden J

Background

The appellant was convicted in the District Court of three counts of sexual intercourse without consent in circumstances of aggravation under s 61J of the Crimes Act 1900. The Crown case was that the appellant had lured the complainant to his home under the pretence of discussing computers, then sexually assaulted her on three occasions using threats and force. DNA evidence linked the appellant to semen recovered from the complainant, and witnesses observed her in a distressed state shortly after the alleged offences.

The appellant denied the assaults in a recorded police interview, claiming the sexual activity was consensual and initiated by the complainant. A neighbour, Mr Lysenko, gave evidence relevant to the issue of consent.

The appeal raised multiple grounds, including concerns about how a key witness's prior evidence was admitted, the Crown Prosecutor's address to the jury, and, critically, the adequacy of the trial judge's directions on the onus of proof and the standard of reasonable doubt.

  • Whether Mr Felice, a witness who was overseas at the time of the second trial, was "unavailable" within the meaning of the Evidence Act 1995 so that his evidence from a prior trial was admissible
  • Whether the Crown Prosecutor's closing address, which referred to the complainant's tears and demeanour, constituted a ground of appeal
  • Whether the trial judge's directions to the jury on the onus of proof and the standard of reasonable doubt were adequate and correct
  • Whether the directions misdirected the jury by framing the central question as a choice between believing the complainant or the appellant, rather than whether the Crown had proved its case beyond reasonable doubt
  • Whether the trial miscarried as a result of any or all of these matters

Decision

Dunford J (with whom Spigelman CJ and Hidden J agreed) delivered the leading judgment. On the admissibility of Mr Felice's prior evidence, the Court found that a witness overseas is not necessarily "unavailable" under the Evidence Act 1995. Unavailability requires that it not be reasonably practicable to obtain the person's evidence. The Court was not satisfied that that threshold had been met on the facts, and identified this as a potential error, though it ultimately proceeded to find the trial miscarried on other grounds.

On the summing-up, the Court identified serious misdirections in the trial judge's directions on reasonable doubt and the onus of proof. In several passages, the judge had framed the jury's task as deciding which account, the complainant's or the appellant's, was correct. That approach is impermissible: the question is not whose evidence the jury prefers, but whether, on the whole of the evidence, the Crown has proved the accused's guilt beyond reasonable doubt. This principle derives from Liberato v The Queen (1985) 159 CLR 507.

The Court also found a related error in the directions concerning the neighbour's evidence. The judge directed the jury that it would need to accept the neighbour's account before that evidence could give rise to a reasonable doubt. In fact, the correct position is that if the evidence raised a reasonable possibility that the appellant's account on consent was correct, an acquittal was required, regardless of whether the jury positively accepted that witness.

No re-directions had been sought at the close of the summing-up, engaging the relevant procedural rule. However, the Court was satisfied that the misdirections were so fundamental that the appellant had not received a fair trial according to law. In those circumstances, it was unnecessary to determine whether the jury was also misdirected on matters relating to the Crown Prosecutor's address or the conduct of the trial more generally.

Orders Made

  • Appeal allowed
  • Convictions set aside
  • New trial ordered
  • Application for leave to appeal against sentence became irrelevant and was not determined

Key Takeaways

  • A witness who is overseas at the time of trial is not automatically "unavailable" under the Evidence Act 1995. The party seeking to rely on prior evidence must establish that it was not reasonably practicable to obtain the witness's attendance or testimony.
  • Directing a jury to choose between the complainant's version and the accused's version is a fundamental misdirection. The correct question, as confirmed in Liberato v The Queen, is always whether the Crown has proved its case beyond reasonable doubt on the whole of the evidence.
  • Where a witness gives evidence capable of supporting the defence case, it is wrong to direct the jury that it must positively accept that evidence before a reasonable doubt can arise. A reasonable possibility consistent with innocence is sufficient to require an acquittal.
  • The Court of Criminal Appeal reaffirmed that directions framing the jury's task as a credibility contest between the complainant and the accused fundamentally misstate the onus and standard of proof in criminal proceedings.
  • Misdirections of a fundamental character may warrant a new trial even where no re-direction was sought at trial, provided the court is not satisfied that the accused received a fair trial according to law.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 61J
- Criminal Procedure Act 1986 (NSW) s 112 (now s 285)
- Evidence Act 1995 (NSW) ss 65, 67, 192, Dictionary

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