Xue v R

Case [2021] NSWCCA 270 15 November 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Xue v R [2021] NSWCCA 270
Hearing dates: 8 September 2021
Date of orders: 15 November 2021
Decision date: 15 November 2021
Before: Beech-Jones CJ at CL at [1];
R A Hulme J at [2];
N Adams J at [3].
Decision:
(1) Leave to appeal against conviction is granted.
(2) The appeal is dismissed.

Catchwords:
CRIME — Appeals — Appeal against conviction — offences under s 193C, Crimes Act – dealing with property suspected of being proceeds of crime – whether necessary to particularise serious offence(s) from which funds derived – consideration of analogous provision in s 400.9, Criminal Code (Cth) – held, not necessary to particularise serious offence(s) – whether trial judge failed to provide adequate reasons – whether verdicts unreasonable – whether trial judge erred in finding that defence in s 193C(4) was not made out – appeal dismissed

Legislation Cited:
Confiscation of Proceeds of Crime Act 1989 (NSW)
Confiscation of Proceeds of Crime Amendment Act 2005 (NSW)
Crimes Act1900 (NSW) ss 193A, 193B, 193C, 193F
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Code (Cth) ss 400.1, 400.9, 400.13
Criminal Legislation Amendment (Organised Crime and Public Safety) Act2016 (NSW)
Criminal Procedure Act 1986 (NSW), ss 132, 133
Evidence Act1995 (NSW), ss 65, 128, 177, 191
Interpretation Act 1987 (NSW), s 12
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701
Chen v Director of Public Prosecutions (Cth) (2011) 83 NSWLR 224; [2011] NSWCCA 205
Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521; (2012) 227 A Crim R 287
Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699
DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Ford v R [2020] NSWCCA 99
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Lin v R [2015] NSWCCA 204; (2015) 253 A Crim R 1
Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26
Obeid v R [2017] NSWCCA 221
R v Chan (1992) 28 NSWLR 421
R v McKellar (No 3) [2014] NSWSC 106
Yacoub v R [2021] NSWCCA 166

Texts Cited:
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 October 2005
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 22 March 2016

Category: Principal judgment
Parties: Juan Xue (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr D Campbell SC with Mr G Jones (Applicant)
Ms K Jeffreys (Respondent)
Solicitors:
M Sten (Applicant)
Solicitor for Public Prosecutions (NSW)

File Number(s): 2018/215130
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

17…

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 Xue v R

Details

AGLC: Xue v R [2021] NSWCCA 270
Case: [2021] NSWCCA 270
Decision Date: 15 November 2021

CaseChat Overview and Summary

The appellant, Xue, was convicted by a jury of offences under section 193C of the Crimes Act, relating to dealing with property suspected of being the proceeds of crime. The appeal centred on several legal issues, including whether it was necessary to specify the serious offences from which the funds were derived, whether the trial judge provided adequate reasons for the jury's verdicts, whether those verdicts were unreasonable, and whether the trial judge erred in finding that the defence under section 193C(4) was not made out. The court considered these issues within the framework of analogous provisions in the Criminal Code (Cth).

The court examined the requirement to particularise the serious offences from which the funds were derived, concluding that such specificity was not necessary. This conclusion was drawn by considering the analogous provision in section 400.9 of the Criminal Code, which does not require the same level of detail. Regarding the adequacy of the trial judge's reasons, the court found that the judge had sufficiently directed the jury on the elements of the offence. The court also held that the jury's verdicts were not unreasonable, given the evidence presented. Finally, the court confirmed that the trial judge did not err in finding that the defence under section 193C(4) was not made out, as the defence's requirements were not met by the evidence.

Given the court's findings, the appeal was dismissed, affirming the conviction. The detailed reasoning provided by the court ensured that the jury's verdicts were supported by the evidence and that the legal principles applied were consistent with analogous provisions in the Criminal Code. The final orders were to uphold the conviction as determined by the trial court.

Orders