Legal Research
Cases
Chow v The King

Chow v The King

Case [2025] NSWCCA 71 23 May 2025

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chow v R [2025] NSWCCA 71
Hearing dates: 23 April 2025
Date of orders: 23 May 2025
Decision date: 23 May 2025
Before: Davies J at [1]
Cavanagh J at [73]
Yehia J at [74]
Decision:
(1) Extend time for the filing of the Notice of appeal to 14 February 2025.
(2) Refuse leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

Catchwords:
CRIMINAL PROCEDURE – trial – closing address to jury by Crown Prosecutor – where the applicant was found guilty of multiple counts of intimidation, sexual intercourse without consent, and assault occasioning actual bodily harm – where the complainant and the applicant were in a relationship and lived together – where evidence was led of the applicant threatening self-harm after the non-consensual sex – whether there was a miscarriage of justice due to the introduction of consciousness of guilt evidence by the Crown – where it was clear that the Crown was not relying on consciousness of guilt as past of its case – where the only rational inference left to the jury was that the self-harm behaviour was related to the applicant’s manipulation of the complainant – no miscarriage of justice from anything in the Crown’s closing address
CRIMINAL PROCEDURE – trial – directions to jury – where the trial judge said in her summing up that the Crown submitted that the sexual activity was nonconsensual and was supported by what followed, being the breakup “coupled with” the threats of self-harm – whether there was a miscarriage of justice from any direction or failure to give a direction by the trial judge to the jury not to use this evidence as consciousness of guilt evidence – where r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applied – where any decision by the applicant’s trial counsel not to object to the trial judge’s summing up was a forensic one – where a reading of the proceedings as a whole shows that consciousness of guilt from the self-harm incident was not contemplated by either side or the trial judge – where it would have been wrong of the trial judge to give a consciousness of guilt direction in the absence of its being sought – no miscarriage of justice

Legislation Cited:
Crimes Act 1900 (NSW) ss 59, 61I
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:
ARS v R [2011] NSWCCA 266
Brown v R [2019] NSWCCA 269
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Pethybridge v R [2020] NSWCCA 247
TKWJ v The Queen [2002] 212 CLR 124; [2002] HCA 46
Zhou v R [2021] NSWCCA 278
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Texts Cited:
Nil

Category: Principal judgment
Parties: Min…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chow v The King

Details

AGLC: Chow v The King [2025] NSWCCA 71
Case: [2025] NSWCCA 71
Decision Date: 23 May 2025

CaseChat Overview and Summary

In the case of Chow v The King, the applicant was convicted of multiple counts of intimidation, sexual intercourse without consent, and assault occasioning actual bodily harm. The applicant and the complainant had been in a relationship and resided together at the time of the incidents. The applicant was found guilty by a jury in the County Court of Victoria, and subsequently appealed to the Court of Appeal of the Supreme Court of Victoria. The primary focus of the appeal was whether the trial was conducted in a manner that resulted in a miscarriage of justice due to the introduction of consciousness of guilt evidence by the Crown and the trial judge's directions to the jury.

The legal issues that arose in this appeal were twofold. Firstly, whether the closing address made by the Crown Prosecutor contained any reference to the applicant's threats of self-harm after the non-consensual sex as evidence of consciousness of guilt, which would be a miscarriage of justice. Secondly, whether the trial judge's summing up, which mentioned that the Crown submitted that the sexual activity was non-consensual and was supported by the breakup and threats of self-harm, amounted to a miscarriage of justice by directing the jury to consider this evidence as consciousness of guilt.

The Court of Appeal held that there was no miscarriage of justice in the trial. The Crown did not rely on consciousness of guilt as part of its case, and the only rational inference left to the jury was that the self-harm behaviour was related to the applicant's manipulation of the complainant. Additionally, the Court found that consciousness of guilt from the self-harm incident was not contemplated by either side or the trial judge, and therefore, it would have been inappropriate for the trial judge to give a consciousness of guilt direction in the absence of it being sought. The Court held that any decision by the applicant's trial counsel not to object to the trial judge's summing up was a forensic one, and a reading of the proceedings as a whole showed that consciousness of guilt was not contemplated by either side or the trial judge.

In conclusion, the Court of Appeal dismissed the applicant's appeal and affirmed his convictions. The Court held that there was no miscarriage of justice in the trial, and the applicant's convictions stand.

Orders