Citation: Application by Yu Hai Li pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 544
Court: Supreme Court of New South Wales
Date: 18 May 2021
Judge: N Adams J
Background
The applicant was convicted in September 2016, following a 32-day jury trial in the District Court, of supplying a large commercial quantity of methylamphetamine and two counts of possessing a prohibited weapon (electric shock devices). She was sentenced to an aggregate term of 14 years imprisonment with a 10-year non-parole period. She also received a separate sentence for ongoing supply of methylamphetamine following a guilty plea.
The Crown case rested on extensive evidence, including recordings of controlled operations in which undercover police operatives purchased methylamphetamine directly from the applicant on multiple occasions in 2014, and evidence from a co-offender who gave evidence at trial. Police also executed a search warrant at premises associated with the applicant, recovering nearly 3.8 kilograms of methylamphetamine and the two prohibited weapons.
The applicant had previously sought leave to appeal to the Court of Criminal Appeal, represented by senior counsel. Leave was refused in 2019, and a subsequent application for special leave to the High Court was also unsuccessful. The applicant then filed this application herself from custody under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW), seeking an inquiry into her conviction.
Legal Issues
- Whether the applicant's handwritten, self-represented application raised any doubt or question about the guilt of a convicted person sufficient to warrant referral to the Court of Criminal Appeal under the CAR Act
- Whether the trial judge misdirected the jury or fabricated evidence, as alleged under Grounds 1 and 2
- Whether the trial judge improperly threatened the applicant to prevent her from exercising her right to self-representation, as alleged under Ground 3
- Whether an affidavit filed by a co-offender in support of the application was authentic and, if so, whether its contents raised any doubt about the applicant's guilt
Decision
Adams J declined to refer the matter to the Court of Criminal Appeal, finding that none of the three grounds raised any doubt or question as to the applicant's guilt. Although the court had the power to decline to consider the application entirely given how comprehensively the appeal had been dealt with by the Court of Criminal Appeal, Adams J nonetheless addressed each ground in the interests of open justice.
On Grounds 1 and 2, the applicant alleged that the trial judge fabricated evidence and created false definitions for the jury, and contaminated the trial by substituting her own account for that of witnesses. Adams J found these allegations to be completely untenable. The trial judge's directions and summaries were consistent with the trial transcript, and any discrepancies identified by the applicant were minor and immaterial to the outcome.
On the co-offender's affidavit, questions arose about its authenticity. Its contents were, in any event, inconsistent with the co-offender's sworn trial evidence and with the objective evidence overall. The affidavit did not raise any real doubt about the applicant's guilt.
On Ground 3, Adams J examined the trial transcript and found that the trial judge's remarks, which the applicant characterised as threats, were in fact genuine attempts to ensure the applicant understood the serious risks of proceeding unrepresented in a trial carrying a potential life sentence. The transcript showed the judge acting protectively toward the applicant rather than punitively. No basis for referral arose from any of the grounds.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under ss 78 and 79 of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court may decline to consider a post-conviction review application without detailed reasons where a conviction has already been comprehensively reviewed by the Court of Criminal Appeal, though the court may still address grounds in the interests of open justice.
- A post-conviction inquiry application requires the applicant to raise a genuine doubt or question about guilt; serious and unsubstantiated allegations against a trial judge, unsupported by the transcript, will not satisfy that threshold.
- The court is not required to address every allegation or submission in a s 78 application, only to identify and consider the substance of the matters relied upon.
- Where a trial judge warned a self-represented accused of the risks of discharging legal counsel mid-trial, including the inability to appeal certain decisions, the court found that conduct consistent with proper judicial concern for the accused's interests, not improper pressure.
- Affidavit evidence filed in support of a review application that conflicts with the deponent's own sworn trial evidence and with the objective evidence carries little, if any, weight in raising a doubt about guilt.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW), s 112
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 9, 10, 47A
- Weapons Prohibition Act 1998 (NSW), s 7
Cases:
- Li v R [2019] NSWCCA 228
- Li v The Queen [2020] HCASL 6
- Clark v Attorney General of New South Wales [2020] NSWCA 70
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318; [2003] HCA 28
- Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15
- Bandao v R; Bruce v R [2018] NSWCCA 181
- Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Director of Public Prosecutions (NSW) v Trudgett [2013] NSWSC 1607
- Director of Public Prosecutions v Am [2006] NSWSC 348
- R v Xie (No 4) [2014] NSWSC 500