Liu v R; Lv v R [2017] NSWCCA 148

Liu v R; Lv v R [2017] NSWCCA 148

Liu's statement to police about throwing the phone out of the car was made in the course of official questioning connected with investigation of a possible indictable offence and was inadmissible under s 281 because it was not recorded and no reasonable excuse was established. However, the Crown case was very strong without that statement, including the victim's evidence, corroboration by Zhou and other witnesses, records, cash found in the car, and Liu's observed disposal of the victim's property, so conviction was inevitable and the proviso applied. On sentence, the judge erred in treating the victim as vulnerable in a way aggravating the offence and in treating the $2,000 withdrawal as...

Jurisdiction
Australia
Judgment Date
17 June 2017
Procedural Posture
Criminal Appeal Against Conviction and Applications for Leave to Appeal Against Sentence / Court of Criminal Appeal From District Court Sentence and Conviction
Outcome
Leave to appeal against sentence granted to each applicant; Liu's appeal against conviction and sentence dismissed; Lv's appeal against sentence dismissed.
Legal Topics
['robbery in Company' 'admissions by Suspects' 'official Questioning' 'proviso' 'substantial Miscarriage of Justice' 'victim Vulnerability' 'objective Seriousness' 're Sentencing Discretion']
['criminal Law' 'evidence' 'criminal Procedure' 'sentencing'] ['robbery in Company' 'admissions by Suspects' 'official Questioning' 'proviso' 'substantial Miscarriage of Justice' 'victim Vulnerability' 'objective Seriousness' 're Sentencing Discretion']

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Procedural Posture

Criminal Appeal Against Conviction and Applications for Leave to Appeal Against Sentence / Court of Criminal Appeal From District Court Sentence and Conviction

Legal Issues

  1. 1 ["Whether the trial judge erred in admitting Liu's statement to Constable Paton about throwing away the victim's mobile phone despite s 281 of the Criminal Procedure Act 1986 (NSW)." 'Whether, if the admission was wrongly admitted, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied because no substantial miscarriage of justice occurred.' 'Whether the sentencing judge erred by treating the victim as vulnerable by reason of immigration status or situational circumstances.' "Whether the sentencing judge erred in treating the withdrawal of $2,000 from the victim's bank account as an inherent aspect of, or relevant to the objective seriousness of, the robbery in company." 'Whether, on re-exercising the sentencing discretion, any lesser sentence was warranted.']

Ratio Decidendi

Liu's statement to police about throwing the phone out of the car was made in the course of official questioning connected with investigation of a possible indictable offence and was inadmissible under s 281 because it was not recorded and no reasonable excuse was established. However, the Crown case was very strong without that statement, including the victim's evidence, corroboration by Zhou and other witnesses, records, cash found in the car, and Liu's observed disposal of the victim's property, so conviction was inevitable and the proviso applied. On sentence, the judge erred in treating the victim as vulnerable in a way aggravating the offence and in treating the $2,000 withdrawal as...

Court Disposition

Leave to appeal against sentence granted to each applicant; Liu's appeal against conviction and sentence dismissed; Lv's appeal against sentence dismissed.

Orders

  • ['Leave to appeal against sentence be granted to each applicant.' 'The appeal of Dino Shihang Liu against conviction and sentence be dismissed.' 'The appeal by Yaxuan Lv against sentence be dismissed.']