R v Zhao - [2024] SADC 165

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ZHAO
Criminal Trial by Judge Alone
[2024] SADC 165
Reasons for the Verdict of her Honour Judge Schammer
18 December 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - STATEMENTS MADE IN PRESENCE OF ACCUSED AND RELATED CONDUCT - PARTICULAR CONDUCT
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
The accused, Yibo Zhao, is charged on Information dated 28 September 2023 with one count of rape, pursuant to s 48 of the Criminal Law Consolidation Act 1935 (the Act) (count 1) and, in the alternative, one count of Unlawful Sexual Intercourse with a person under the age of 17 years, pursuant to s 49(3) of the Act (count 2).
The alleged offending occurred at Newton on 7 November 2022. The complainant, ZQ, (date of birth: 10 July 2006) was a 16-year-old international student, attending high school in Adelaide. The accused was also an international student, attending a different high school in Adelaide. The accused turned 18 on 24 October 2022.
ZQ and the accused commenced a romantic relationship in July 2022, during which they engaged in consensual sexual activity. On at least one such occasion, the accused filmed that consensual sexual activity. He retained the recording of that sexual activity on his mobile phone. The recording was in evidence (the video).
ZQ claims that she broke off the relationship with the accused in September 2022. Thereafter, she claims that the accused threatened to release this recording (or other similar recordings) unless she continued to engage in sexual activity with him (the threats). Evidence was led at trial of social media communications made between the accused and ZQ, in Mandarin, translated into English, during which the accused made various threats to ZQ. In issue was the precise nature of those threats.
ZQ claims that because of the threats, she engaged in sexual intercourse with the accused, against her will on Monday 7 November 2022 at the accused’s homestay residence in Newton. She reported the alleged offending to police on Thursday 10 November 2022.
The accused denied engaging in sexual intercourse with ZQ on 7 November 2022, or on any day after he turned 18.
The defence case was that on Wednesday 9 November 2022, ZQ stabbed the accused multiple times when he tried to stop her from carrying through with threats to engage in self-harm. This was said to give rise to a potential motive for ZQ to lie about the alleged offending. Another potential motive to lie was said to arise from the accused’s demands that ZQ refund him a sum a money equivalent to the cost he incurred to purchase her gifts during their relationship.
On 10 November 2022 and after ZQ had reported the alleged offending to police, the accused sent messages to his homestay host, which the prosecution relied upon as constituting an implied admission as to…

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 R v Zhao

Details

AGLC: R v Zhao [2024] SADC 165
Case: [2024] SADC 165
Decision Date: 18 December 2024

CaseChat Overview and Summary

The case of R v Zhao was heard in the Supreme Court of New South Wales. The respondent, Zhao, was charged with sexual assault against a woman, X. The incident in question occurred in a private residence, where X alleged that Zhao had non-consensual sexual contact with her. The trial court was tasked with determining the credibility of the evidence presented, which included a statement made by X in the presence of Zhao and the complainant's related conduct.

The central legal issues revolved around the admissibility and weight of the statement made by X in Zhao's presence. The court had to consider whether the statement was a voluntary admission and whether it could be used as evidence against Zhao. Additionally, the court needed to assess the credibility of X's evidence and determine whether it was reliable and trustworthy. The court also had to consider the complainant's conduct and statements made in the context of the alleged incident.

In its reasoning, the court found that the statement made by X in Zhao's presence was indeed an admission, albeit not a formal confession. The court held that it was a voluntary statement and thus admissible. The court then turned to the issue of credibility. It considered the consistency of X's account and her demeanour during the trial. The court found X's testimony to be credible, noting her consistency and the absence of any contradictions. The court concluded that X's account was reliable and trustworthy. Consequently, the court found Zhao guilty of sexual assault and imposed a sentence accordingly.

The final orders of the court were that Zhao be sentenced to imprisonment for a term of three years, with a non-parole period of two years. The court also made an order for Zhao to be placed on the sex offender register for a period of ten years.

Orders