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Zhao v The King

Zhao v The King

Case [2024] NSWCCA 229 6 December 2024

Breach of Reasonable Doubt

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zhao v R [2024] NSWCCA 229
Hearing dates: 26 August 2024
Date of orders: 6 December 2024
Decision date: 06 December 2024
Before: N Adams J at [1];
Ierace J at [229];
Sweeney J at [231].
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the conviction and enter an order of acquittal.

Catchwords:
CRIME – Appeals – Appeal against conviction – Unreasonable verdict – two counts of sexual offences – where applicant found guilty on one count and acquitted on the other – whether on all of the evidence it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt – discrepancies and inconsistencies in complainant’s evidence – appeal allowed – conviction quashed.

Legislation Cited:
Crimes Act 1900 (NSW), ss 61HE, 61I
Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW)
Criminal Appeal Act(NSW), ss 5(1)(b), 6(1)
Surveillance Devices Act 2007 (NSW), s 7(1)(3)

Cases Cited:
AS v R [2022] NSWCCA 291
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Harper v R [2022] NSWCCA 211
Hodgson v R [2022] NSWCCA 72
JL v R [2023] NSWCCA 99
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Reed v R [2006] NSWCCA 314
RM v R [2024] NSWCCA 148
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Z (a pseudonym) v R [2022] NSWCCA 8

Category: Principal judgment
Parties: Shuning Zhao (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Game SC with D McMahon (Applicant)
E Nicholson (Respondent)
Solicitors:
Benjamin Leonardo Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/00151979
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 November 2023

Before:

North DCJ

File Number(s):

2022/00151979

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 5 September 2023, the applicant, Shuning Zhao, stood trial at the District Court of New South Wales at Sydney before his Honour Judge North and a jury of twelve on the following charges:

Count 1: That on 14 November 2020 he had sexual intercourse with the complainant without her consent knowing that she was not consenting to the sexual intercourse contrary to s 61I of the Crimes Act 1900 (NSW).
Count 2: That on 19 November 2020 he had sexual intercourse with the complainant without her consent knowing that she was not consenting to the sexual intercourse contrary to s 61I of the Crimes Act.

The Crown case relied largely on the evidence of the complainant, who, at the time of the two alleged offences, was in a casual sexual relationship with the applicant.

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 Zhao v The King

Details

AGLC: Zhao v The King [2024] NSWCCA 229
Case: [2024] NSWCCA 229
Decision Date: 06 December 2024

CaseChat Overview and Summary

The appellant, Zhao, was convicted by a jury of one count of sexual intercourse without consent and acquitted of another. The Crown appealed against the acquittal on the second count, and Zhao appealed against his conviction on the first count. Zhao’s appeal against the conviction was based on the contention that the verdict was unreasonable and could not be supported by the evidence. The appeal hinged on the consistency and reliability of the complainant’s testimony, with significant discrepancies and inconsistencies noted. The court had to determine whether, on all the evidence presented, it was open to the jury to be satisfied beyond reasonable doubt of Zhao’s guilt.

The court examined the complainant’s testimony, noting several inconsistencies and discrepancies that undermined its reliability. The discrepancies related to the timing and nature of the alleged events, which were critical to establishing the elements of the offence. The court also considered the defence’s argument that the inconsistencies were such that they cast doubt on the veracity of the complainant’s account. The primary legal issue was whether the jury could have reasonably concluded that Zhao was guilty beyond reasonable doubt, given the problematic nature of the complainant’s evidence. The court concluded that, due to the significant inconsistencies and discrepancies in the complainant’s evidence, it was not open to the jury to be satisfied of Zhao’s guilt beyond reasonable doubt.

Accordingly, the court allowed Zhao’s appeal against his conviction, quashed the conviction, and discharged Zhao from the charge. The Crown’s appeal against the acquittal on the second count was dismissed. The court found that the discrepancies in the complainant’s evidence were such that they rendered the jury’s verdict unreasonable, and thus, the conviction could not stand. The court’s decision underscored the importance of reliable and consistent evidence in establishing criminal liability, particularly in cases involving sexual offences where the credibility of the complainant is paramount.

Orders