Jiang v R

Case [2010] NSWCCA 277


New South Wales
Court of Criminal Appeal

CITATION: Jiang v R [2010] NSWCCA 277
HEARING DATE(S): 18 October 2010
 
JUDGMENT DATE: 

29 November 2010
JUDGMENT OF: Simpson J at 1; Hoeben J at 2; RA Hulme J at 3
DECISION: Appeal against conviction dismissed.
Application for leave to appeal against sentence refused.
CATCHWORDS: CRIMINAL LAW - appeal and new trial - particular grounds of appeal - misdirection and non-direction - whether direction was required to warn against substitution of evidence of uncharged acts for charged acts - whether error in judge's comment that certain prosecution evidence had not been challenged or contradicted - CRIMINAL LAW - appeal and new trial - appeal against sentence - grounds for interference - whether sentence manifestly excessive - whether error in not finding special circumstances
LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Rules
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
CATEGORY: Principal judgment
CASES CITED: Clarke v R [2009] NSWCCA 49
House v The King [1936] HCA 40; 55 CLR 499
LJW v R [2010] NSWCCA 114
Mulato v R [2006] NSWCCA 282
O'Leary v The King [1946] HCA 44; 73 CLR 566
Quayle v R [2010] NSWCCA 16
Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463
R v Adam [1999] NSWCCA 189; 106 A Crim R 510
R v ATM [2000] NSWCCA 475
R v Baldwin [2004] NSWCCA 21
R v Cramp [2004] NSWCCA 264
R v Dixon [2001] NSWCCA 39
R v El-Hayek [2004] NSWCCA 25; 144 A Crim R 90
R v Li [2010] NSWCCA 125
R v Qin [2008] NSWCCA 189
RPS v The Queen [2000] HCA 3; 199 CLR 620
Toalepai v R [2009] NSWCCA 270
PARTIES: Wen Sheng Jiang (Appellant)
Regina (Respondent)
FILE NUMBER(S): CCA 2009/7838
COUNSEL: Mr M Thangaraj SC (Appellant)
Ms S Dowling (Crown)
SOLICITORS: Legal Aid Commission
Solicitor for Public Prosecutions
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2009/11/0391
LOWER COURT JUDICIAL OFFICER: King DCJ
LOWER COURT DATE OF DECISION: 5 November 2009




                          2009/7838

                          SIMPSON J
                          HOEBEN J
                          R A HULME J

                          29 November 2010
Wen Sheng JIANG v R

Judgment



1 SIMPSON J:

I agree with R A Hulme J.

2 HOEBEN J: I agree with R A Hulme J and the orders which he proposes.

3 R A HULME J: The appellant was convicted after a trial in the District Court before his Honour Judge King SC and a jury of one count of indecent assault, contrary to s 61L of the Crimes Act 1900, and two counts of sexual intercourse without consent, contrary to s 61I of the same Act.

4 The maximum penalties prescribed for these offences are imprisonment for 5 years and imprisonment for 14 years respectively.

5 The appellant was sentenced to imprisonment for a fixed term of 6 months for the count of indecent assault. That sentence was totally subsumed within concurrent sentences of 2 years, with non-parole periods of 18 months, for each of the…

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Jiang v R [2010] NSWCCA 277
Case
[2010] NSWCCA 277
Decision Date

CaseChat Overview and Summary

The appeal in Jiang v R concerns the conviction and sentence of the appellant, Jiang, following a criminal trial in which he was found guilty of multiple offences. The court was tasked with assessing the sufficiency of the evidence, the propriety of the judge's directions to the jury, and the appropriateness of the sentence imposed. The appeal before the court raised questions about whether the trial judge erred in the directions given to the jury, specifically whether the judge failed to warn the jury against substituting evidence of uncharged acts for the charged acts, and whether there was a misdirection regarding the prosecution evidence that had not been challenged or contradicted. Additionally, the appeal addressed the sentence, questioning whether it was manifestly excessive and whether the trial judge failed to consider special circumstances.

The court examined the trial judge's directions to the jury and found no misdirection that could have materially affected the safety of the conviction. The court held that the judge's comments did not constitute an error that could have misled the jury into substituting uncharged acts for the charged acts. Furthermore, the court found that the judge's remarks about the unchallenged prosecution evidence did not constitute a misdirection. The court concluded that the evidence was sufficient to support the jury's verdict and that the trial process was fair. Regarding the sentence, the court found no basis to interfere, holding that the sentence was not manifestly excessive and that the trial judge had appropriately considered the relevant factors, including any special circumstances.

In conclusion, the court dismissed the appeal against the conviction and sentence. The directions given to the jury were deemed adequate, and the evidence was sufficient to uphold the conviction. The sentence was found to be appropriate, with no basis for finding it manifestly excessive. The appeal was thus dismissed in its entirety, and the original conviction and sentence were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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