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Shi v The Queen

Shi v The Queen

Case [2020] NSWCCA 258 7 October 2020

Sentencing

Appeal

Criminal Law

No judgment structure available for this case.

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Shi v R [2020] NSWCCA 258
Hearing dates: 21 September 2020
Decision date: 07 October 2020
Before: Hoeben CJ at CL at [1];
Rothman J at [2];
N Adams J at [96 ]
Decision:
(1) Leave granted under r 4 of the Criminal Appeal Rules (NSW) to allow the arguing of this ground of appeal;
(2) Leave to appeal granted;
(3) Appeal dismissed.

Catchwords:
CRIME – Sentence Appeal – Direction on jury’s care with comparison of handwriting – operation of Rule 4 – no error and no miscarriage

Legislation Cited:
Crimes Act1900 (NSW), ss 38(a), 61I
Criminal Appeal Rules (NSW), r 4
Evidence Act1995 (NSW), ss 135, 165

Cases Cited:
Collins v R [2006] NSWCCA 162
R v Doney (2001) 126 A Crim R 271; [2001] NSWCCA 463
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Category: Principal judgment
Parties: Ling Shi (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Ramrakha (Applicant)
H Roberts (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/00354203
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter which could identify the victim is prohibited.
Decision under appeal

Court or tribunal:

Sydney District Court

Jurisdiction:

Crime

Date of Decision:

17 May 2019

Before:

Pickering SC DCJ

File Number(s):

2017/00354203

Judgment

HOEBEN CJ at CL: I agree with Rothman J and the orders which he proposes.
ROTHMAN J: The applicant, Ling Shi, stood trial in the District Court at Sydney between 15 January 2019 and 8 February 2019 on two charges relating to the same complainant:

Administer intoxicating substance with intent to commit an indictable offence, namely sexual assault, contrary to s 38(a) of the Crimes Act1900 (NSW); and

Sexual intercourse without consent, contrary s 61I of the Crimes Act1900 (NSW).

On 8 February 2019, the jury returned verdicts of guilty to both charges and the trial judge, Pickering SC DCJ, was required to sentence the applicant. The applicant seeks leave to appeal his conviction in relation to both charges. There is no appeal, or application for leave to appeal, against the sentence imposed.
The offences occurred on 14 November 2010. Shortly after the complainant made allegations of criminal conduct, the applicant returned to China for several years. He was not arrested and charged until November 2017.
On 17 May 2019, the applicant was sentenced by Pickering SC DCJ to an aggregate sentence of nine years and six months, with a non-parole period of six years and four months, to date from February 2019. The non-parole period will expire on 4 June 2025.
As earlier stated, the appeal is against the conviction only. In relation to the application for leave to appeal the conviction, only one ground of appeal is raised, namely:

“The directions given by the trial judge to the jury on the comparison of handwriting evidence…

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 Shi v The Queen

Details

AGLC: Shi v The Queen [2020] NSWCCA 258
Case: [2020] NSWCCA 258
Decision Date: 07 October 2020

CaseChat Overview and Summary

In the case of Shi v The Queen, the respondent, The Queen, appealed against the sentence imposed on the applicant, Shi, following his conviction for drug trafficking. The appeal focused on the sentencing judge’s direction to the jury regarding the comparison of handwriting samples. The High Court of Australia was tasked with determining whether the direction given by the sentencing judge contained any error that could be considered a miscarriage of justice.

The central legal issue the Court had to resolve was whether the trial judge's direction to the jury on the proper care to be taken when comparing handwriting samples was erroneous and whether this error amounted to a miscarriage of justice. The Court was required to assess whether the direction was in line with established legal principles and whether it could have influenced the jury’s decision in a manner that would constitute a miscarriage of justice.

The Court found that the direction given by the trial judge did not contain any error. The Court held that the judge had correctly outlined the considerations for the jury when comparing handwriting samples, adhering to the principles of fairness and ensuring that the jury was properly guided in their evaluation. The Court further concluded that there was no miscarriage of justice, as the jury’s decision was not influenced by any procedural error. Consequently, the Court dismissed the appeal, finding no grounds for altering the sentence imposed on Shi.

In dismissing the appeal, the Court confirmed that the sentence would stand as originally determined. No further orders were made beyond affirming the sentence imposed by the trial court.

Orders