Xu v R

Case [2023] NSWCCA 93 21 April 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Xu v R [2023] NSWCCA 93
Hearing dates: 28 September 2022
Date of orders: 21 April 2023
Decision date: 21 April 2023
Before: Garling J at [1];
Hamill J at [3];
N Adams J at [23].
Decision:
(1) Grant an extension of time.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – conviction appeal – applicant convicted of sexual assault offences – application for extension of time – seven grounds of appeal – whether the trial miscarried and there was a substantial miscarriage of justice arising from how the Crown prosecutor opened on the complainant’s intoxication and the element of consent and the trial judge’s response to this – whether the trial miscarried because there was no expert evidence on intoxication at trial – whether the trial miscarried because of the trial judge’s ruling to disallow the complainant from being cross-examined on a particular document – whether the verdicts were unreasonable – strong Crown case – alleged inconsistencies all jury matters that were raised at trial – applicant seeks to adduce “new” evidence on intoxication, the complainant’s residence and CCTV footage – new evidence does not prove applicant’s innocence or raise a doubt about guilt – all grounds dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 61, 61HA, 61I, 61L, 61P
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Criminal Procedure Act1986 (NSW), s 159
Evidence Act1995 (NSW), ss 55, 101A, 102, 103

Cases Cited:
Beattie v The Queen (2020) 287 A Crim R 287; [2020] NSWCCA 334
Croftsv The Queen (1996) 186 CLR 427; [1996] HCA 22
Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Hamide v The Queen (2019) 101 NSWLR 455; [2019] NSWCCA 219
Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
Holt v R [2021] NSWCCA 140
House v The King (1936) 55 CLR 499; [1936] HCA 40
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44
SC v R [2023] NSWCCA 60
SC v The Queen [2023] NSWCCA 60
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Xie v The Queen (2021) 386 ALR 371; [2021] NSWCCA
Zhou v The Queen [2021] NSWCCA 278

Texts Cited:
New South Wales Law Reform Commission, Consent in relation to sexual offences (Consultation Paper No 21, October 2018)

Category: Principal judgment
Parties: Longwei Xu (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr T Hickie (Applicant)
Ms C Curtis (Respondent)
Solicitors:
Chess Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/379625
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 July 2018

Before:

Noman SC DCJ

File Number(s):

2015/379625

HEADNOTE

[This headnote…

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 Xu v R

Details

AGLC: Xu v R [2023] NSWCCA 93
Case: [2023] NSWCCA 93
Decision Date: 21 April 2023

CaseChat Overview and Summary

The applicant in this matter, Xu, was convicted of various sexual assault offences. The appeal against the conviction was heard in the High Court of Australia. Xu sought an extension of time to lodge his grounds of appeal and was granted this extension by the court. The appeal was brought on seven grounds, the most significant of which was the assertion that the trial miscarried and that there was a substantial miscarriage of justice. This was said to arise from the way in which the Crown prosecutor opened on the complainant’s intoxication and the element of consent, and the trial judge’s response to this. The applicant also argued that the trial miscarried because there was no expert evidence on intoxication at trial, and because of the trial judge’s ruling to disallow the complainant from being cross-examined on a particular document. Xu further argued that the verdicts were unreasonable. The applicant sought to adduce new evidence on intoxication, the complainant’s residence and CCTV footage.

The court dismissed the application for an extension of time to lodge grounds of appeal. The court found that the trial did not miscarry, and that there was no substantial miscarriage of justice. The court held that the Crown prosecutor’s opening was not improper, and that the trial judge’s response was appropriate. The court held that the absence of expert evidence on intoxication did not result in a miscarriage of justice, and that the trial judge’s ruling to disallow cross-examination on a particular document was not an error of law. The court held that the verdicts were not unreasonable, and that the alleged inconsistencies were matters that were raised at trial and were for the jury to determine. The court held that the new evidence sought to be adduced by Xu did not prove his innocence or raise a doubt about his guilt. The appeal was dismissed, and Xu’s convictions were upheld.

Orders