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Court of Criminal Appeal 21 May 2020

Liu v R

[2020] NSWCCA 100

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL OFFENCES WHETHER CONSENT GIVEN APPEAL DISMISSED

Citation: Liu v R [2020] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 21 May 2020
Judge(s): R A Hulme J; Fagan J; Hidden AJ

Background

The applicant was a man of Chinese origin, then aged close to 60, who had lived in Chatswood, Sydney with his wife and extended family since 2004. His niece by marriage, then aged approximately 28, had moved into the family home in 2015 to study in Sydney and was living there again from early 2017. In the early hours of 18 April 2017, when the two were the sole occupants of the house, the alleged offences occurred.

The applicant was tried in the District Court at Sydney before Huggett DCJ. A jury found him guilty on two counts of indecent assault (contrary to s 61L of the Crimes Act 1900 (NSW)) and one count of sexual intercourse without consent (contrary to s 61I). He sought leave to appeal against his conviction, though the application was filed out of time.

The Crown did not oppose an extension of time. The sole ground of appeal was that the verdicts were unreasonable and could not be supported by the evidence.

  • Whether the jury's verdicts of guilty on all three counts were unreasonable or unsupported by the evidence, applying the standard established by the High Court in cases including M v The Queen, Libke v The Queen, and SKA v The Queen.

Decision

The Court of Criminal Appeal identified the applicable test as whether, having considered the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt. The Court independently examined the evidence, including the complainant's account of events and the contemporaneous WeChat message exchanges.

The complainant gave evidence that after the applicant entered her bedroom late at night and remained there, she went to the kitchen and exchanged messages with her boyfriend in China expressing embarrassment and confusion. When she returned to the bedroom, further conversation preceded the alleged offences. The Court found that the complainant's account, together with the text message evidence, was capable of supporting the jury's findings. The jury was entitled to accept the complainant's evidence of what occurred and her evidence of non-consent.

The applicant also raised objections in oral submissions to aspects of the Crown prosecutor's closing address at trial, contending those submissions were impermissible or unfair. The Court rejected those arguments. It noted that, in any event, an unreasonable verdict ground is resolved by reference to the evidence itself, not to the quality of counsel's addresses. No grounds of appeal directly raised the complaints about the address, and no corrective directions had been sought from the trial judge.

Having considered the whole of the evidence, the Court was satisfied it was open to the jury to find the applicant's guilt proved beyond reasonable doubt on all three counts. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Time extended for filing the application for leave to appeal up to and including 4 December 2019.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an unreasonable verdict ground is resolved by examining the whole of the evidence, asking whether a guilty verdict was open to the jury on that evidence. The quality or fairness of counsel's closing addresses is not the relevant inquiry.
  • Contemporaneous electronic communications, such as WeChat messages, formed part of the evidentiary record the Court considered when assessing whether the jury's verdicts were reasonably open.
  • No error was established simply because the applicant disputed the complainant's credibility or asserted that his own evidence was compelling. The jury was entitled to accept or reject the evidence of any witness.
  • In dismissing the appeal, the Court applied the High Court tests in M v The Queen, Libke v The Queen, and SKA v The Queen, reinforcing that appellate courts conduct an independent review of the evidence rather than deferring entirely to the jury's assessment.
  • Where no objection was raised at trial and no ground of appeal was formally filed, the Court declined to rule on asserted irregularities in the Crown's closing address.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules, r 4

Cases:
- M v The Queen (1994) 181 CLR 487
- Libke v The Queen (2007) 230 CLR 559
- SKA v The Queen [2011] HCA 13