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Court of Criminal Appeal 19 December 2019

Lai v R

[2019] NSWCCA 305

Sexual offences
CRIME APPEALS LEAVE TO APPEAL AGAINST CONVICTION WHETHER MISCARRIAGE OF JUSTICE CRIMES ACT 1900 (NSW), SS 38(B) AND 61I CONVICTIONS QUASHED AND RETRIAL ORDERED

Citation: Lai v R [2019] NSWCCA 305
Court: Court of Criminal Appeal, New South Wales
Date: 19 December 2019
Judge(s): Gleeson JA, Walton J, Fullerton J

Background

The appellant was convicted by jury in the District Court of two offences: administering an intoxicating substance (clonazepam) to a complainant with intent to commit a sexual offence, and sexual intercourse without consent. The Crown alleged that in October 2015, while helping the complainant move apartments, the appellant spiked her soft drink with the sedative clonazepam, causing her to fall asleep, and then had sexual intercourse with her while she was unconscious.

The complainant had no memory of the sexual activity and awoke the following morning in different clothing in a different room. Blood tests confirmed clonazepam in her system, and semen matching the appellant's DNA was found in her underwear. The appellant subsequently sent the complainant text messages expressing apologies, and admitted to her in person that the two had "had sex."

The appellant did not challenge the convictions on the basis of insufficiency of evidence. Instead, he sought leave to appeal on the basis that the trial judge's summing-up to the jury was unbalanced and unfair, and thereby occasioned a miscarriage of justice.

  • Whether the trial judge's summing-up fairly presented the defence case to the jury
  • Whether the trial judge made impermissible comments on contested questions of fact, effectively conveying his own opinion on key issues in favour of the Crown
  • Whether any unfairness in the summing-up gave rise to a miscarriage of justice warranting the quashing of convictions and a retrial

Decision

The Court of Criminal Appeal granted leave to appeal and upheld both grounds, finding that the trial judge's summing-up was unbalanced and unfair in two significant respects. First, on ground 1, the trial judge made comments that impermissibly crossed from permissible comment into conveying his own opinion on the disputed factual issues of whether the appellant had administered clonazepam and what the DNA evidence established. The Court found these comments created a substantial risk that the jury would be persuaded of the appellant's guilt by the judge's own assessment rather than their independent evaluation of the evidence.

On ground 2, the trial judge failed to fairly put the defence case to the jury. In particular, the defence had argued that the appellant's text messages and the conversation in which he referred to "having sex" were clouded by issues of interpretation and translation from Cantonese. While the trial judge correctly identified that the real question was what the appellant was apologising for, he did not adequately direct the jury to the defence's position on that question.

Gleeson JA, with whom Walton J and Fullerton J agreed, held that assessing a summing-up requires viewing it as a whole. However, even on that approach, the comments regarding the drug evidence and the DNA evidence crossed the permissible line as articulated in McKell v The Queen. Those comments were apt to create a danger or substantial risk that the jury's deliberations were influenced by the trial judge's own views rather than the evidence alone.

The parties agreed that if the miscarriage of justice ground was established, a retrial was the appropriate remedy. The Court quashed both convictions and ordered a new trial.

Orders Made

  • Leave to appeal granted
  • Appeal against conviction on counts 1 and 2 allowed
  • Convictions on counts 1 and 2 quashed
  • Retrial on counts 1 and 2 directed, with the matter listed for mention before the District Court at Sydney on 17 January 2020

Key Takeaways

  • A trial judge retains the right to comment on the evidence in summing-up, but crosses the line of permissible comment when those remarks convey the judge's own opinion on disputed questions of fact in a way that creates a substantial risk of influencing the jury toward a particular verdict.
  • The Court of Criminal Appeal confirmed the test from McKell v The Queen (2019) 264 CLR 307: a summing-up is assessed as a whole, but isolated comments can still render it unfair if they are apt to substitute the judge's assessment for the jury's independent consideration.
  • A direction to a jury about what is "undisputed" evidence is problematic where the characterisation is incorrect, as this compounds any unfairness by misstating the evidential landscape the jury must assess.
  • Where a defence case turns on contested issues of interpretation, including linguistic or cultural nuances in translated communications, the trial judge must fairly put that dimension of the defence to the jury.
  • Quashing convictions and ordering a retrial is the appropriate remedy where a miscarriage of justice arising from an unfair summing-up is established and the parties do not contend otherwise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4, 38(b), 61I, 578A
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW), s 161
- Firearms Act 1996 (NSW), ss 7(1), 36(1)

Cases:
- McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- Castle v The Queen; Bucca v The Queen [2016] HCA 46; (2016) 91 ALJR 93
- Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
- Dickson v R [2017] NSWCCA 299
- Roos v R [2019] NSWCCA 67