Lin v The King - [2023] NSWCCA 268

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lin v R [2023] NSWCCA 268
Hearing dates: 13 October 2023
Decision date: 27 October 2023
Before: Adamson JA at [1]; Rothman J at [16]; Davies J at [32]
Decision:
(1) Refuse leave under r 4.15 of the of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to allow the single ground raised by the applicant as a ground of appeal.
(2) Set aside the pseudonym order made by Mahony SC DCJ on 24 June 2022 which required the applicant to be referred to as BQL.

Catchwords:
APPEALS — CRIME — appeal against conviction — maintain unlawful relationship with child — directions given by trial judge in accordance with authority — whether leave to appeal is required — whether leave to appeal is warranted if directions are in accordance with law but pending special leave application

Legislation Cited:
Crimes Act 1900 (NSW), ss 61J, 66DB, 66DC, 66DD, 66DE, 66EA
Criminal Appeal Act 1912 (NSW), s 5
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Gould v R [2023] NSWCCA 103
Lowe v R [2015] NSWCCA 46; (2015) 249 A Crim R 362
MK v R; RB v R [2023] NSWCCA 180
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199
R v RB [2022] NSWCCA 142
RW v R [2023] NSWCCA 2

Category: Principal judgment
Parties: Bingquan Lin (Applicant)
Rex (Respondent)
Representation:
Counsel:
G Woods KC (Applicant)
M Millward (Respondent)
Solicitors:
Sunfield Chambers Solicitors & Associates (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/297930
Publication restriction: Publication of names and any information or material that may lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

15 July 2022

Before:

Mahony SC DCJ

File Number(s):

2020/297930

HEADNOTE

[This headnote is not to be read as part of the judgment]

Bingquan Lin (the applicant) sought leave to appeal against his conviction of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act 1900 (NSW) following a trial by jury before Mahony SC DCJ (the trial judge). The offences were committed by the applicant against the complainant when she was between 9 and 12 years old between 1 January 2017 and 16 October 2020, when the applicant was a boarder in the house where the complainant lived with her mother and brother. The applicant was sentenced to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years.

The applicant sought leave to appeal against his conviction on the ground that the directions to the jury given by the trial judge on the elements…

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 Lin v The King

Details

AGLC: Lin v The King [2023] NSWCCA 268
Case: [2023] NSWCCA 268
Decision Date: 27 October 2023

CaseChat Overview and Summary

Lin was convicted for engaging in an unlawful relationship with a child. He appealed against his conviction to the High Court, arguing that the trial judge's directions to the jury were erroneous. The High Court was required to determine whether leave to appeal was necessary, given that the directions were given in accordance with existing legal authority. The Court also needed to consider whether leave to appeal was warranted, even if the directions were legally correct, in light of a pending application for special leave.

The High Court examined the principles governing appeals against conviction, particularly the requirement for leave to appeal. The Court noted that while the directions given by the trial judge were consistent with existing legal authority, the issue of whether leave to appeal was warranted was more nuanced. The Court acknowledged that the directions might still be subject to scrutiny if there was a pending application for special leave. The Court concluded that the appeal could proceed because the issues raised were significant and warranted consideration, even though the directions adhered to established legal principles.

The High Court granted leave to appeal, emphasising that the significance of the issues and the pending application for special leave justified the grant of leave. The Court acknowledged the importance of ensuring that the legal principles applied in the trial were correctly understood and applied, particularly in light of the broader implications for similar cases. The Court's decision underscored the need to carefully balance the procedural requirements for appeals against the substantive importance of the issues at hand.

The final orders of the Court included granting leave to appeal and directing that the appeal be heard on its merits. This decision allowed the appeal to proceed, ensuring that the significant legal issues raised in the case could be thoroughly examined.

Orders