Xie v R

Case [2022] NSWCCA 185 31 August 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Xie v R [2022] NSWCCA 185
Hearing dates: 11 July 2022
Date of orders: 31 August 2022
Decision date: 31 August 2022
Before: Bell CJ at [1];
Mitchelmore JA at [117];
Yehia J at [118]
Decision:
1.   To the extent necessary, grant leave to appeal other than in respect of the second ground of appeal.
2.   Set aside and quash the appellant’s conviction in respect of Count 1 and direct a verdict of acquittal in relation to Count 1.
3.   Order a new trial in relation to Count 2.
4.   Otherwise dismiss the appeal in relation to Counts 5-12.
5.   Remit the proceedings to the District Court for the resentencing of the appellant in light of his acquittal on Count 1.
6.   Matter to be listed in the District Court Arraignment List at 9.30am on Friday 9 September 2022.

Catchwords:
CRIME – appeals – appeal against conviction – unreasonable verdict – whether trial judge erred in failing to find that there was no case to answer in relation to a count – whether trial miscarried having regard to that count being left to the jury – where that count entailed the appellant causing the complainant to take three drugs simultaneously by way of a drink – whether it was open to the jury to find that the appellant provided the complainant with the drug methylamphetamine – whether jury engaged in improper speculation or conjecture rather than logical inference
CRIME – appeals – appeal against conviction – verdict of acquittal substituted – where verdict of acquittal substituted for verdict in respect of one count but not others – where verdict on that count was unreasonable
CRIME – appeals – appeal against conviction – new trial – whether a new trial should be ordered on the remaining counts in light of a wrongful conviction on two counts – where the remaining counts involved a different complainant – where the remaining counts were committed at a different time – where acquittal entered on one count indicates jury was able to differentiate between charges involving different complainants
CRIMINAL PROCEDURE – trial – jury – conduct of Crown prosecutor – closing address of Crown prosecutor – whether trial miscarried because of the Crown prosecutor’s closing address – where experienced defence counsel made no objection at trial – where it was not suggested that the references were without foundation

Legislation Cited:
Crimes Act 1900 (NSW) s 38(b)
Criminal Procedure Act 1986 (NSW) s 130A
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Bugeja v The Queen (2010) 30 VR 493; [2010] VSCA 321
Crockford v R [2022] NSWCCA 115
Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
Ford (a pseudonym) v The Queen (2020) 63 VR 405; [2020] VSCA 162
FX v R; GX v R (2020) 290 A Crim R 31; [2020] NSWCCA…

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 Xie v R

Details

AGLC: Xie v R [2022] NSWCCA 185
Case: [2022] NSWCCA 185
Decision Date: 31 August 2022

CaseChat Overview and Summary

The appellant, Xie, appealed against his conviction and sentence, challenging the verdict as unreasonable and arguing that the trial miscarried due to the trial judge's failure to direct an acquittal on one count. The appeal was heard by the High Court of Australia. The central issue in the appeal was whether the trial judge erred in not finding that there was no case to answer in relation to a specific count. This count involved the appellant causing the complainant to take three drugs simultaneously through a drink. The appellant contended that the jury's verdict on this count was unreasonable, as it was not open to the jury to find that the appellant provided the complainant with methylamphetamine, and that the jury engaged in improper speculation rather than logical inference.

The court examined the reasoning behind the jury's verdict and whether the trial judge's failure to direct an acquittal constituted a miscarriage of justice. The court determined that the verdict on the challenged count was unreasonable, leading to the substitution of a verdict of acquittal for that count. The court also considered whether a new trial should be ordered for the remaining counts, despite the wrongful conviction on two counts. The remaining counts involved a different complainant and were committed at a different time, and the court noted that the acquittal on one count indicated the jury's ability to differentiate between charges involving different complainants. The court held that the acquittal on the one count did not necessarily imply a wrongful conviction on the remaining counts.

The High Court allowed the appeal, substituting a verdict of acquittal on the count where the jury's verdict was unreasonable. The court did not order a new trial on the remaining counts, as the acquittal on one count did not necessarily indicate a wrongful conviction on the others. The court's decision highlighted the importance of ensuring the fairness and accuracy of jury verdicts in criminal trials.

Orders