Luo v The King

[2024] NSWCCA 58

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Luo v R [2024] NSWCCA 58

Hearing dates:

8 April 2024

Date of orders:

3 May 2024

Decision date:

03 May 2024

Before:

Adamson JA at [1];
Basten AJA at [2];
Wilson J at [3]

Decision:

(1) Grant leave to argue error in the refusal of the District Court to grant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW);

(2) Refuse leave to adduce additional evidence;

(3) Dismiss the appeal.

Catchwords:

CRIME – costs – appeal – applicant acquitted at trial of a charge of manslaughter – subsequent application for costs refused – appeal against refusal of costs certificate – interlocutory appeal – leave required – application to rely on further evidence

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW), ss 2, 3

Crimes Act 1900 (NSW), s 18

Criminal Appeal Act 1912 (NSW), s 5F

Cases Cited:

R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356

Nydam v R [1977] VR 430

Rodden v R [2023] NSWCCA 202

The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37

Category:

Principal judgment

Parties:

Yun Sen Luo (Applicant)
Rex (Respondent)

Representation:

Counsel:
Applicant (Self-represented)
Mr J Styles (Respondent)

Solicitors:
Solicitor for Director of Public Prosecutions (Respondent)

File Number(s):

2018/00252523

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 March 2022

Before:

Pickering SC DCJ

File Number(s):

2018/00252523

JUDGMENT

1. ADAMSON JA: I agree with Wilson J.

2. BASTEN AJA: I agree with Wilson J.

3. WILSON J: The applicant, Yun Sen Luo, stood trial before his Honour Judge Pickering SC sitting without a jury from 9 February 2022 to 28 February 2022, indicted upon a single count of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW). A verdict of not guilty was returned by his Honour on 25 March 2022. The applicant thereafter made an oral application for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). His Honour heard the application on 4 November 2022 and declined it that same day, giving judgment ex tempore. The applicant now seeks to challenge the order of the District Court. He appeared unrepresented before this Court and, although an interpreter in his native language had been made available to him, he rarely took advantage of the interpreter’s assistance.

4. The application is brought as an appeal against an interlocutory judgment or order pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), an avenue of appeal available with the leave of the Court: Rodden v R [2023] NSWCCA 202, at [60] – [97]. If granted that leave, a question to which I will return, the applicant advances some 84 individual grounds, and seeks leave to adduce additional evidence that was not before the trial judge. That is also a matter to which I will return.

The Proceedings in the District Court

5. The charge brought against the applicant at trial related to the death on 8 June 2018 of Chuan Ying Xia. [1] Prior to her death the deceased had consulted the applicant, a registered practitioner of Chinese medicine. Although Ms Xia suffered from diabetes, the applicant was asked to treat her for a skin condition, a form of eczema. He saw her for the first time on 26 May 2018. The Crown alleged at trial that the applicant directed Ms Xia to cease taking the medications prescribed to her by the doctors treating her for diabetes and commence using herbal preparations prescribed by him. In addition, he told Ms Xia to stop following a diabetic diet. When she did these things, her condition began to deteriorate. Ms Xia became too ill to attend the applicant’s practice, and he thereafter carried out several home visits, at the request of the deceased’s daughter. The applicant expressed the view that Ms Xia’s decline was caused by toxins leaving the body and the situation would resolve. The deceased’s family continued to consult the applicant, including by sending video imagery of her presentation, but was advised only that Ms Xia should take saffron, potato soup, or other foodstuffs. Nothing else was done about Ms Xia’s deterioration until she became so ill that she stopped breathing, prompting her family to call the emergency operator for an ambulance. Ms Xia was admitted to Hornsby Hospital on 8 June 2018 but could not be saved. She died that day. The direct cause of death was given as iatrogenic diabetic ketoacidosis, with a primary cause noted as withdrawal of treatment for diabetes.

   1. The deceased’s name is spelled in different ways in the material; this spelling reflects that in the indictment as amended on 9 February 2022.

6. The head of liability relied upon by the Crown for manslaughter was criminal negligence. The Crown contended that, in advising the deceased about treatment connected to her diabetes, the applicant had assumed a duty of care to her, which he breached by continuing to direct her to abandon conventional medication and a diabetic diet in favour of herbal remedies, leading to or accelerating Ms Xia’s death. The Crown contended that the applicant’s conduct was so grossly negligent as to warrant criminal punishment.

7. Drawing from Nydam v R [1977] VR 430 at 445 and The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37, to prove manslaughter by criminal negligence the Crown was required to prove each of the following elements beyond reasonable doubt:

1. Ms Xia died;

2. The applicant owed her a legal duty of care;

3. He did an act (being his direction to cease conventional treatment for diabetes and failure to secure appropriate medical treatment for her when her condition worsened);

4. The cessation of medication and failure subsequently to secure necessary treatment was a substantial cause of or accelerated Ms Xia’s death;

5. The applicant’s advice was negligent and he breached the duty of care he owed Ms Xia;

6. His act amounted to criminal negligence and merited criminal punishment for the offence of manslaughter because:

(a) It fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and

(b) It involved such a high risk that death or really serious bodily harm would follow as a result.

8. It is not necessary to refer to the evidence placed before the trial judge in any detail. Suffice to say that the Crown called evidence with respect to the treatment provided by the applicant to Ms Xia, to establish both its asserted gross negligence and a direct link between it and her death. In his case the applicant disputed that he had assumed a duty of care to the deceased, or that the treatment he gave her had caused or accelerated her death. The final element to be proved by the Crown was also in dispute with the applicant contending that nothing he had done in his treatment of Ms Xia was so negligent as to merit criminal punishment.

9. In the verdict judgment of 25 March 2022, the trial judge found that the Crown had established each element of the offence of manslaughter by criminal negligence, except for the last. That is, the Crown case failed because his Honour was not satisfied beyond reasonable doubt that the applicant’s conduct had been so wicked as to amount to criminal conduct meriting criminal punishment. His Honour found that the evidence establishing that the applicant had told Ms Xia to cease taking conventional diabetes medication was overwhelming. He said:

“In one respect it was completely irresponsible of him at that stage to tell her not to take Western medication. This was not his role as a Traditional Chinese medicine practitioner. Clearly, as outlined by the code of conduct, but also in the evidence of Dr Carolyn Ee which in my view was undisputed in this trial, is that the role of Traditional Chinese medicine is to work in conjunction with Western medicine, and in that respect, he was well outside his skills, his requirements, and it was completely undesirable for him to even be talking about her not taking prescribed medication.”

10. His Honour was also well satisfied that, accepting the applicant’s advice, Ms Xia abandoned the medication regime prescribed to her by medical practitioners for the treatment and management of her diabetes, with the effect that her condition significantly deteriorated. The trial judge found that the applicant was aware of Ms Xia’s worsening symptoms and presentation, but failed to realise the seriousness of her condition and maintained his advice to her; he did not take steps to secure treatment for her declining health. In so doing his Honour concluded that the applicant had breached the duty of care that he owed Ms Xia as his patient, a duty at least to do her no harm.

11. Neither did Ms Xia or her family seek alternative treatment, despite the dramatic decline. His Honour concluded that Ms Xia and her family had placed complete faith in the applicant’s treatment and advice until it was too late. The trial judge accepted the expert evidence as to cause of death, which was directly linked to the cessation of treatment for diabetes. His Honour concluded:

“[…] there is little doubt that the accused played a significant role in this death. Dr Ee was particularly critical of many of the things done by Mr Luo in this matter. He was clearly in breach of many aspects of the code of conduct here, which she pointed to some incredibly unsatisfactory aspects of his work including aspects of his telling her not to take Western medication, his poor record taking in relation to this aspect, that some of his discussions with the daughter about aspects of her condition and what had occurred just seemed to be completely inconsistent with any understanding of even traditional Chinese medicine, that he was reckless in relation to his behaviour in going for home visits in circumstances where clearly traditional Chinese medicine was not an emergency aspect, and she found that his behaviour was significantly poor in many respects.

I do not think that her views are particularly controversial.”

12. Having concluded that the Crown had established the elements set out above, at [7], (1) to (5), the trial judge concluded that, whilst the applicant’s treatment of Ms Xia was “utterly incompetent”, he could not be satisfied to the requisite standard that it was criminal in nature. The verdict of not guilty was entered.

The Application to this Court

13. It is in the last mentioned conclusion of the trial judge in the verdict judgment that the answer to the present application is found.

14. The applicant has pleaded 84 somewhat diffuse and periphrastic grounds. No doubt because the applicant was unrepresented with respect to this application, and because English is not his native language, the grounds are frequently repetitive, prolix, and difficult to understand. They also advance arguments not made before the trial judge by the applicant, with significant variation between the case at first instance and that before this Court. These features militate against a grant of leave to advance the appeal. It is not the role of this Court to scrutinise hundreds of pages of material searching for an arguable ground of appeal and thereafter frame an applicant’s argument for him; neither is it open as a matter of course to an applicant to advance a different case in this Court to that made at first instance.

15. I am not unmindful, however, of the difficulties facing an unrepresented litigant, and particularly a litigant with limited English language skills. I would not grant leave to the applicant to advance the 84 grounds pleaded but, bearing in mind the obvious difficulties he had in advancing his application, I propose to consider what I take to be his overarching complaint.

16. When reduced to something more manageable, the applicant’s real grievance is in the outcome of his costs application. He contends that there were errors of fact and law in the verdict judgment such that the trial judge erred in accepting that the Crown had proved elements 1 to 5 of the charge; and that error in turn led to the erroneous disposition of the costs application. The applicant’s argument, when reduced to essentials, is that it was unreasonable for the Crown to commence the prosecution against him, and the trial judge should have so concluded and granted his application for a costs certificate.

17. In support of that overall argument the applicant’s contention is that, because the trial judge found that his treatment of Ms Xia was not so wicked as to attract the sanction of the criminal law, it was not a criminal case at all, and the prosecution should never have been commenced by the Crown. The argument is, however, flawed. It mistakes the failure by the Crown to prove the sixth element of manslaughter by gross negligence with a conclusion that the case was not one properly placed before a criminal court. As the trial judge concluded in the costs judgment, satisfaction of proof of the sixth element was “a judgment call”, with respect to which a tribunal of fact differently constituted may have reached a different conclusion. Put another way, precisely the same evidence before, as an example, a jury of twelve, could conceivably have led to the applicant being found guilty of Ms Xia’s manslaughter. As his Honour observed:

“Here, the prosecution had a case in which there is little doubt as I articulated in my judgment of 25 March 2022 that the acts of the applicant did play a very significant role in the ultimate death of the deceased in this matter. As I noted in my judgment in my view he still has a significant moral responsibility in her death.”

18. In my assessment the evidence to establish the factual elements of the offence (elements 1 to 5) was, as the trial judge concluded, overwhelming and it was well open to his Honour to find that, in the context of offering treatment as a practitioner of Chinese medicine, the applicant counselled Ms Xia to abandon conventional treatment and management of her diabetic condition, leading to an immediate and disastrous decline in her health, which the applicant failed to recognise, and with respect to which he neither sought nor advised appropriate medical treatment. Those acts contributed directly and significantly to Ms Xia’s death, with the cause of death a complication of her diabetic condition and not, as the applicant asserted, a heart attack. Where the Crown case failed was in the evaluative element of whether that conduct was so wicked as to be criminal. In those circumstances, the trial judge concluded,

“I do not think it was unreasonable to institute the proceedings. In my view, given the significant moral role that the applicant played in the death of the deceased, given the actual factual role he played in […] the demise of the deceased and given the capacity that those combination of features could have potentially on a reasonable basis have made out the wickedness required to establish manslaughter; I’m of the view that it was reasonable to institute the proceedings and continue them.”

19. Section 2 of the Costs in Criminal Cases Act provides, relevantly, as follows:

2   Certificate may be granted

(1)   The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may—

(a)     where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned,

[…]

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

[…].

20. Section 3 relevantly is in these terms:

3   Form of certificate

(1)   A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate—

(a)     if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, […].

21. Of importance to the decision to refuse the certificate is the conclusion of the trial judge that the “relevant facts” referred to in s 3(1)(a), being those required to be established in proof of the first five elements of the offence, were each proved beyond reasonable doubt by the Crown at trial. It was only with respect to that aspect of proof of the charge that called for a value judgment by the application of the standards of a reasonable person, where proof to the criminal standard was not reached. An evaluative judgment of that nature is classically in the province of the jury or other tribunal of fact. On that basis it could not be said to have been unreasonable for the Crown to place the matter before a tribunal of fact for determination by a court. The trial judge was in my opinion correct to so hold.

22. The evidence before the trial court readily established to the criminal standard the following factual matters.

1. The applicant, in the context of treating Ms Xia for a skin condition, told her not to take the Western medicine she was prescribed for treatment of diabetes, also counselling her to give up the restrictive diet prescribed to her for management of her condition. Ms Xia told a number of people about this after consulting the applicant, and the applicant conceded to investigating police in an electronically recorded exchange that he had done so.

2. In giving Ms Xia that advice and commencing to treat her the applicant assumed a legal duty of care to her, at least to do her no harm.

3. He continued in his advice to Ms Xia not to take any Western medication, even after she became visibly very ill, and he failed to recognise that she needed medical treatment, thereby further breaching the duty of care owed to her.

4. Because of the cessation of medication to manage Ms Xia’s diabetes she became very ill and died from diabetic ketoacidosis as a result of the withdrawal of diabetes treatment. The applicant’s treatment of Ms Xia was negligent, and a direct and substantial cause of her death.

23. On the basis of the evidence to establish these propositions, it can also be concluded that, although the trial judge was not satisfied that this negligence was so wicked as to call for criminal sanction, it was open for the contrary conclusion to be reached. It was not unreasonable for the prosecutor to commence and continue the prosecution of the applicant.

24. There is no error in my conclusion in the decision of the trial judge to decline to grant a costs certificate to the applicant.

Fresh Evidence and Leave

25. The remaining issues concern grants of leave.

26. The applicant sought to rely upon evidence that was not before the trial judge, at trial or on the costs application before his Honour. The material related to alternative translations of some of the primary evidence. The evidence is not fresh, as that word is generally understood in an appellate context. That is, it is not evidence that was unavailable to the applicant at trial, either actually or constructively: R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356, at [63]. Even if that is not a relevant question where the Court is hearing an appeal against an interlocutory order rather than an appeal against conviction, it is of relevance to observe that alternative translations of Chinese language evidence was not sought out for the District Court proceedings because there was no question raised as to the accuracy of those that were available. The position of the applicant’s counsel at trial in that regard suggests that the absence of the now proffered evidence did not cause the trial judge’s determination of the verdict or the question of costs to miscarry. I would refuse leave to adduce the additional evidence.

27. With respect to leave to advance the appeal, this is a matter in which the question would ordinarily be approached with a degree of circumspection. In Rodden this Court said, at [103] – [104]:

“This Court would ordinarily not grant leave to appeal from an evaluative decision where the decision was open to the primary judge and where he or she had the benefit of knowledge of the underlying proceedings, and the circumstances of the trial as they unfolded. The desirability of the trial judge making such an evaluation, and his or her advantages in so doing, were noted in Manley.

In most cases in which there is an appeal from the grant or refusal to grant a certificate, the trial judge will be best placed to make the assessments referred to in s 3. Unless some issue of principle is raised or a question of public importance arises or there is some palpably wrong decision on the facts, it can be expected that this Court will ordinarily either refuse leave or limit the grant of leave to exclude a factual challenge to the merits of the assessment and formation of opinion made under s 3 of the Act.”

28. Even though the trial judge’s decision was well open, and no question of public importance arises, I would allow a very limited grant of leave, principally because the applicant is disadvantaged by his poor English language skills and unrepresented, both in this Court and below on the costs application. I would grant leave to consider an overarching complaint as to whether the trial judge erred in refusing to grant a s 2 certificate.

29. That question should be answered in the negative. Accordingly, the orders I propose are these:

1. Grant leave to argue error in the refusal of the District Court to grant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW);

2. Refuse leave to adduce additional evidence;

3. Dismiss the appeal.

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Endnote

Decision last updated: 03 May 2024