Xu v R

Case [2019] NSWCCA 178 6 September 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Xu v R [2019] NSWCCA 178
Hearing dates: 28 June 2019
Date of orders: 28 June 2019
Decision date: 06 September 2019
Before: Bathurst CJ at [1]
Harrison J at [2]
N Adams J at [80]
Decision:
(1)    Allow the appeal.
(2)    Quash the convictions on counts 1 and 2.
(3)    Direct the entry of a verdict of acquittal on counts 1 and 2.

Catchwords: CRIME – conviction appeal – where applicant convicted of indecent assault and sexual assault – whether trial miscarried because of defence counsel’s failure to adduce evidence of applicant’s prior good character – whether verdict is unreasonable – whether trial miscarried because of the admission of prejudicial evidence
Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61L
Criminal Appeal Act 1912 (NSW), s 8(1)
Cases Cited: CR v R [2017] NSWCCA 29
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Matthews v R [2013] NSWCCA 187
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Nudd v The Queen (2006) 225 ALR 161; [2006] HCA 9
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Category: Principal judgment
Parties: Jiaheng Xu (Applicant)
Crown (Respondent)
Representation:
Counsel:
D Randle (Applicant)
Belinda Baker (Respondent)
Solicitors:
Armstrong Legal (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/337867
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

30 November 2018

Before:

Walmsley ADCJ

File Number(s):

2017/337867

Judgment

BATHURST CJ: I have had the advantage of reading the reasons of Harrison J in draft. These reasons accord with the reasons I joined in the orders made by the Court on 28 June 2019.
HARRISON J: Jiaheng Xu appeals against his convictions for one offence of indecent assault contrary to s 61L of the Crimes Act 1900 and one offence of sexual assault contrary to s 61I of that Act. Mr Xu had been tried before his Honour Walmsley ADCJ and a jury between 12 November 2018 and 21 November 2018. In addition to these guilty verdicts, Mr Xu was acquitted of two further counts under s 61L and two further counts under s 61I. His Honour directed a verdict of not guilty with respect to a further count under s 61I.
At the trial, it was not in dispute that Mr Xu and the complainant had engaged in sexual acts. Mr Xu maintained that these acts were consensual. The significant issue for the jury to decide was whether the…

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 [2019] NSWCCA 178
Case: [2019] NSWCCA 178
Decision Date: 06 September 2019

CaseChat Overview and Summary

In the matter of Xu v R, the applicant appealed against his conviction for indecent assault and sexual assault. The case was heard in the High Court of Australia. The applicant argued that his trial miscarried due to the defence counsel’s failure to adduce evidence of his prior good character, and that the verdict was unreasonable. Additionally, the applicant contended that the trial miscarried due to the admission of prejudicial evidence.

The primary legal issues the Court had to address were whether the defence counsel's failure to present evidence of the applicant’s good character constituted a miscarriage of justice, and whether the admission of prejudicial evidence undermined the fairness of the trial. Furthermore, the Court had to determine if the verdict was unreasonable in light of the presented evidence.

The Court found that the failure of the defence counsel to present evidence of the applicant’s good character did not constitute a miscarriage of justice. The Court emphasised that while good character evidence can be relevant, it is not a mandatory requirement for a fair trial. The Court also held that the admission of prejudicial evidence did not necessarily lead to a miscarriage of justice, provided that the evidence was relevant and its probative value outweighed any prejudicial effect. Additionally, the Court concluded that the verdict was not unreasonable as it was supported by the evidence presented at the trial. Therefore, the appeal was dismissed.

Orders