Zhang v The King - [2024] VSCA 137

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0046

XIAO LONG ZHANG	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, McLEISH and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2024
DATE OF JUDGMENT:	19 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 137
JUDGMENT APPEALED FROM:	DPP v Zhang (Unreported, County Court of Victoria, 29 November 2023, Judge Gaynor)

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CRIMINAL LAW – Appeal – Conviction – Application for extension of time to seek leave to appeal – Sexual assault – Consent and belief in consent in issue at trial – Complaint evidence – Whether complainant’s prior representation to boyfriend that applicant ‘touched’ her relevant to issue of lack of consent – Whether prior representation admissible as truth of complaint – Direction merely reflecting admissibility of evidence for both purposes – Counsel’s acquiescence in proposed direction complied with Jury Directions Act 2015 s 12 – Otherwise no substantial and compelling reason to give direction – Prior representation admissible to buttress credibility of complainant – Prior representation admissible in proof of the fact that the touching was without the complainant’s consent – No substantial miscarriage of justice in any event – Application for extension of time refused.

Jury Directions Act 2015 ss 12, 15, 16; Evidence Act 2008 ss 60, 66 discussed.

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Counsel
Applicant:		Mr D Dann KC with Ms G Connelly
Respondent:		Ms K Argiropoulos
Solicitors
Applicant:	Anthony Isaacs Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
McLEISH JA
BOYCE JA:

Introduction

On 2 November 2023, a jury empanelled in the County Court to try him found the applicant guilty of two charges of the sexual assault0F[1] of an adult female complainant, ‘YQH’.1F[2] The first charge alleged that the applicant had touched the complainant’s breast without her consent, and the second charge alleged that the applicant had touched the complainant’s vagina without her consent. Principal issues in the trial were whether YQH consented to sexual touching, and the applicant’s belief as to whether YQH was consenting.
[1]Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 40. The maximum penalty is 10 years’ imprisonment.
[2]On 29 November 2023, the trial judge sentenced the applicant to an aggregate sentence of six months’ imprisonment, coupled with a community correction order of 18 months’ duration.
The applicant now seeks an extension of time within which to file an application for leave to appeal against his conviction. If granted the extension of time, the applicant seeks leave to appeal against his conviction on a single ground, formulated as follows:
A substantial miscarriage of justice has occurred in circumstances where the Learned Trial Judge directed the jury that the Complainant’s statement ‘I was touched’ – could be used by the jury as evidence that:
(a) the accused man touched the Complainant’s vagina without her consent; and
(b) the accused man touched the Complainant on her breasts without her consent.
In our view, the extension of time should be refused. Given…

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 Zhang v The King

Details

AGLC: Zhang v The King [2024] VSCA 137
Case: [2024] VSCA 137
Decision Date: 19 June 2024

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia, where the applicant sought an extension of time to seek leave to appeal his conviction for sexual assault. The crux of the dispute centred around the admissibility of the complainant's prior representation to her boyfriend that the applicant had 'touched' her, and its relevance to the issue of consent and belief in consent at the time of the alleged offence. The applicant argued that the prior representation was inadmissible as evidence of the truth of the complaint and that its admissibility solely to buttress the credibility of the complainant constituted a substantial miscarriage of justice.

The legal issues before the court encompassed whether the complainant's prior representation was admissible to prove the fact that the touching was without consent, and whether the direction given to the jury merely reflected the admissibility of the evidence for both purposes. Additionally, the court had to consider whether counsel's acquiescence in the proposed direction complied with the Jury Directions Act 2015 and whether there was a substantial and compelling reason to give the direction. The court examined whether the prior representation was admissible in proof of the fact that the touching was without the complainant's consent and whether its admissibility solely to buttress the credibility of the complainant constituted a substantial miscarriage of justice.

The court determined that the direction given to the jury merely reflected the admissibility of the evidence for both purposes and that counsel's acquiescence in the proposed direction complied with the Jury Directions Act 2015. The court further found that there was no substantial and compelling reason to give the direction. The prior representation was deemed admissible to buttress the credibility of the complainant and in proof of the fact that the touching was without the complainant's consent. The court concluded that there was no substantial miscarriage of justice in the case. Consequently, the application for an extension of time to seek leave to appeal was refused.

Orders