Regina v Li [2003] NSWCCA 407

New South Wales Court of Criminal Appeal

CITATION : Regina v Li [2003] NSWCCA 407 HEARING DATE(S) : 03/12/03 JUDGMENT DATE : 23 December 2003

JUDGMENT OF : Spigelman CJ at 1; Dunford J at 2; Hidden J at 18 DECISION : Appeal allowed, new trial ordered.

CATCHWORDS : CRIMINAL LAW: Appeal against conviction - detain for advantage, common assault - complainant former wife of appellant - evidence of prior incidents of violence - whether admissible as tendency evidence - whether directions adequate. Criminal Appeal Act, 1912 LEGISLATION CITED : Crimes Act, 1900 Evidence Act, 1995 R v AH (1997) 42 NSWLR 702 CASES CITED : R v Ellis [2003] NSWCCA 319 Festa v The Queen (2001) 208 CLR 593 Pfenning v The Queen (1995) 182 CLR 461 PARTIES : Crown - Respondent Wu Li - Appellant FILE NUMBER(S) : CCA 60276/03 COUNSEL : Mr G Rowling - Respondent Crown Mr P Strickland/Mr Theiring - Appellant SOLICITORS : CK Smith - Respondent Crown DJ Humphreys - Appellant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0504; 02/11/0505 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60276/03

SPIGELMAN CJ DUNFORD J HIDDEN J

Tuesday, 23 December, 2003 REGINA v Wu LI judgment 1 SPIGELMAN CJ: I agree with Dunford J, including in each of the respects in which his Honour adopts the judgment of Hidden J. I agree with the orders proposed by Hidden J. 2 DUNFORD J: In this matter I have had the opportunity of reading in draft form the judgment of Hidden J where the evidence in the trial and the issues in the appeal are sufficiently set out. 3 In my opinion the evidence, which his Honour admitted of the previous events, was all admissible as relationship and background evidence. It showed a deteriorating marriage which had at times been accompanied by some violence and attempts by the appellant to control the complainant (e.g. the incident at Sydney University in 1998), allegations of affairs, separation, divorce, requests by the appellant to revive the marriage and the complainant's refusal. 4 It also showed conduct on the part of the appellant comprising violence, domination and control of the complainant. Although disavowing same, the Crown sought to use this evidence in relation to the first count as showing that the appellant had a tendency to act in a particular way, namely to use violence towards the complainant, which explained why she did not attempt to leave the apartment by walking past him to the front door, but instead went to the balcony and attempted to climb to the lower level. 5 As far as I can tell the Crown did not seek to rely on this evidence in respect of the second count (common assault) and did not in terms ask the jury to infer that because he had assaulted her in the past, he had also assaulted her on this occasion. 6 As his Honour said in his judgment on the voir dire (at pp 7-8): "Secondly, the evidence would tend to provide proof that in some circumstances, particularly in dealing with marriage issues, and I use the word marriage issues in a fairly broad spectrum, that the accused was likely to react violently against the complainant… clearly the jury would be entitled to know the context in which the current offences are said to have been committed. In that circumstance the evidence involved is simple relationship evidence. However the Crown also seeks to show that by these various prior incidents, the accused had a tendency or a propensity to deal with stressful marital situations with violence to the complainant rather than in another way. On that basis the evidence must be tendency or propensity evidence and needs to satisfy the criteria of s 97 and s 101 of the Evidence Act ". 7 This last passage echoed the provisions of s 95 which in effect provides that even if evidence is relevant, and therefore admissible, for another purpose it cannot be used to prove tendency or coincidence unless it complies with Part 3.6 (ss 97-101). It is important to clearly distinguish between evidence admitted as relationship evidence, as tendency evidence or as both: R v AH (1997) 42 NSWLR 702 at 708-9. 8 The test for determining the admissibility of tendency evidence is that laid down in the legislation and not the common law test expounded in Pfenning v The Queen (1995) 182 CLR 461: R v Ellis [2003] NSWCCA 319. 9 It was submitted that the appropriate notice required by s 97(1)(a) had not been given, but this point was not taken at the time of the voir dire and, in my opinion the appellant should not be permitted to raise it now. 10 His Honour found that the evidence had significant probative value (s 97(1)(l)) and its probative value substantially outweighed its prejudicial effect (s 101(2)), noting that the Gold Coast incident shortly before the final incident was "probably admissible" as part of the relationship evidence. I consider these findings were open to his Honour and I would not upset them, adding only that in my view all the evidence his Honour admitted as tendency evidence was properly admissible as relationship evidence and was therefore before the Jury in any event. 11 I am also satisfied that the evidence was admissible as tendency evidence on the first count notwithstanding that it did not tend to establish a tendency or propensity to detain. Section 97 is not directed only at evidence showing a tendency to commit a particular crime but showing a tendency "to act in a particular way". In this case it was directed to showing that the appellant had a tendency to use violence to the complainant and to seek to control her in stressful marriage situations, and was relevant to whether he did by his actions on the night in question effectively "detain" her; but it was not necessary for this purpose to show that he had detained her on any other occasion. 12 For these reasons I am satisfied that the evidence in question was properly admissible not only as relationship evidence, but also as tendency evidence, at least in relation to the first count. 13 I do however share Hidden J's reservations about the admissibility of the evidence as tendency evidence in relation to the second count, even though it may seem artificial to draw a distinction between the two counts in this regard; but in relation to the second count the only probative value of the evidence invited the line of reasoning "he has done it before, so he probably did it on the night in question"; and on that basis it was highly prejudicial and would not satisfy the test prescribed by s 101(2). 14 I also share Hidden J's concern in relation to the directions in relation to this evidence in the Summing up, where clear and specific directions were required distinguishing between its use as relationship evidence and it use as tendency evidence and how as tendency evidence it was relevant to the first count (and, in my opinion, not relevant to the second count). 15 Hidden J has set out the main passages from the Summing up dealing with these issues. Although they refer to both tendency and relationship evidence, they draw no distinction between how the evidence may be used as relationship evidence on the one hand and as tendency evidence on the other, and they do not specify the tendency sought to be proved in relation to the first count. One can only speculate how the jury would have understood the directions, and how they may have used the evidence. 16 In my opinion the ground of appeal that the trial judge failed to adequately direct the jury in relation to the tendency evidence has been made good. 17 I agree with the orders proposed by Hidden J. 18 HIDDEN J: The appellant, Wu Li, was found guilty after a trial in the District Court of detaining for advantage (s90A of the Crimes Act) and common assault (s61 of the Act). There was a third charge in the indictment, arising out of a separate incident, of which he was acquitted and about which no more need be said. He appeals against conviction only. 19 The complainant in respect of each of the charges was his estranged wife, Mansuo Zhao, and the events giving rise to them took place at a home unit at Summer Hill on 23 July 2001. They had been divorced in that same month, having been married since 1995. They had one child, Jerry, who was five years old at the relevant time.