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Hu v The King

Hu v The King

Case [2025] NSWCCA 66 2 May 2025

Appeal

Admissibility of Evidence

Jurisdiction

Miscarriage of Justice

Statutory Interpretation

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hu v R [2025] NSWCCA 66
Hearing dates: 21 March 2025
Date of orders: 2 May 2025
Decision date: 02 May 2025
Before: Davies J at [1];
Wright J at [2];
Sweeney J at [189]
Decision:
(1) In respect of ground 1 to the extent that leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) is required, the applicant has leave to appeal.
(2) In respect of grounds 2 and 4, leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is refused.
(3) In respect of ground 3, the applicant has leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
(4) In respect of ground 5, leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is refused.
(5) The appeal under grounds 1 and 3 is dismissed.

Catchwords:
CRIME – appeals – appeals against conviction – admissibility of tendency evidence – where matters in issue at time of pre-trial ruling not significantly different from matters in issue at close of evidence at trial – where tendency evidence still had significant probative value at close of evidence and probative value outweighed danger of unfair prejudice – where tendency direction given – no error established
CRIME – appeals – appeals against conviction – miscarriage of justice – jury directions – tendency directions – content of tendency directions and standard of proof – where directions and summing up when considered as a whole would not deflect jury from their proper task of determining whether elements of offences proved beyond reasonable doubt – no miscarriage of justice
EVIDENCE – tendency evidence – significant probative value – where asserted tendency is broad – where there is a gap in period where tendency is asserted – given matters in issue the tendency evidence had significant probative value – where probative value outweighed the danger of unfair prejudice – no error in pre-trial ruling
STATUTORY INTERPRETATION – definition – definition of “under authority of” in s 61H(2) Crimes Act 1900 (NSW) – whether person receiving treatment from an osteopath is “in the care of” and thus “under the authority of” the osteopath – no error in so directing jury

Legislation Cited:
Crimes Act 1900 (NSW), ss 61D(1A) (repealed), 61E (repealed), 61H(2), 61J(1) and (2)(e), 61KD(1)(a), 61M(1) and (3)(c) (repealed), 61O (repealed), 66C(2)
Crimes (Amendment) Act 1989 (NSW)
Crimes (Child Assault) Amendment Act 1985 (NSW)
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Criminal Procedure Act 1986 (NSW), ss 130A, 161A
Evidence Act 1995 (NSW), ss 97,101
Interpretation Act 1987 (NSW), ss 34(1)(a), 34(2)(f)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Astill v R [2024] NSWCCA 118
Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44.
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
Huxley v…

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 Hu v The King

Details

AGLC: Hu v The King [2025] NSWCCA 66
Case: [2025] NSWCCA 66
Decision Date: 02 May 2025

CaseChat Overview and Summary

The case before the court involved an appeal against conviction by the appellant against a decision of the District Court of New South Wales. The appellant had been found guilty of various criminal offences, including fraud and deception. The primary issue in the appeal was the admissibility of certain tendency evidence, which was deemed relevant by the trial judge but potentially prejudicial. The appellant argued that the evidence should not have been admitted due to its prejudicial nature outweighing its probative value. Additionally, the appellant contended that there was a miscarriage of justice due to improper jury directions regarding the tendency evidence and the standard of proof required.

The court examined the pre-trial ruling on the admissibility of the tendency evidence and considered whether the matters in issue had significantly changed by the time the evidence was presented. It was found that the tendency evidence had significant probative value and that this value outweighed the potential for unfair prejudice. The court also scrutinised the content and standard of the jury directions on the tendency evidence and the overall summing up by the trial judge. It was determined that the jury directions, when viewed in their entirety, did not lead the jury away from their task of determining whether the elements of the offences were proven beyond reasonable doubt.

The court upheld the conviction, finding no error in the trial judge’s admission of the tendency evidence or in the jury directions. The appeal was dismissed, and the conviction was affirmed. The court concluded that the probative value of the evidence justified its admission and that the jury directions were adequate to ensure a fair trial. The court also addressed the statutory interpretation issue regarding the definition of “under authority of” in the Crimes Act 1900 (NSW), concluding that the trial judge’s direction to the jury was correct and that there was no error in the interpretation of the statutory term.

Orders