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Zhu v The Queen

Zhu v The Queen

Case [2013] NSWCCA 163 9 July 2013

Criminal Liability

Appeal

Admissibility of Evidence

Jury Instructions

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ZHU v R [2013] NSWCCA 163
Hearing dates: 30 May 2013
Decision date: 09 July 2013
Before: Hoeben CJ at CL at [1]
Fullerton J at [95]
McCallum J at [103]
Decision:
Grounds of Appeal 1 and 2 dismissed.
Leave to rely upon Grounds of Appeal 3 and 4 refused.

Catchwords: CRIMINAL LAW - conviction appeal - three counts of sexual intercourse without consent and two counts of sexual assault involving three separate victims - whether course of events at trial gave rise to a miscarriage of justice because of the failure to order separate trials - whether s97 Evidence Act 1995 (NSW) was correctly applied - whether tendency evidence gave rise to a miscarriage of justice - appellant a practitioner of traditional Chinese medicine - whether jury should have been directed as to "for proper medical purposes" with respect to offence contrary to s61H(1) Crimes Act 1900 - significance of jury question - whether evidence gave rise to need for such a direction - whether direction required even though appellant had not raised the issue "for proper medical purposes" - whether jury properly directed as to appellant's good character - appeal dismissed.
Legislation Cited: Crimes Act, 1900 - s61I, s61L
Criminal Appeal Act 1912 - s6(1)
Evidence Act 1995 - s97
Cases Cited: Carney v R; Cambey v R [2011] NSWCCA 223
Dupas v The Queen [2012] VSCA 328
Gillard v R [2003] HCA 64; 219 CLR 1
Ith v R [2012] NSWCCA 70
Madden v R [2011] NSWCCA 254 at [28] - [29]
Pemble v R [1971] HCA 20; 124 CLR 107
R v Forsti [2010] ACTSC 85
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v XY [2013] NSWCCA 121
R v Zaidi (1991) 57 A Crim R 189
Weiss v The Queen [2005] HCA 81; 224 CLR 300
R v Demirok [1976] VR 244
Category: Principal judgment
Parties: Watson Ben Zhi Zhu - Appellant
Representation: Counsel:
Mr M Boulten SC/Mr P Lowe - Appellant
Ms M Cinque - Respondent Crown
Solicitors:
McKenzie Leamey - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2010/274546
Decision under appeal

Date of Decision:

2011-11-24 00:00:00

Before:

Hock DCJ

File Number(s):

2010/274546

Judgment

HOEBEN CJ at CL:

Nature of Appeal

The appellant appeared for trial before Hock DCJ and a jury on 1 November 2011 in relation to five counts:

Count 1: That on or about 17 January 1994 at Sydney in the State of NSW did have sexual intercourse with SB without her consent knowing that she was not consenting (s61I Crimes Act, 1900; max penalty 7 years - no SNPP because of date of commission of the offence).

Count 2: That on or about 17 January 1994 at Sydney in the State of NSW did have sexual intercourse with SB without her consent knowing that she was not consenting (s61I Crimes Act, 1900; max penalty 7 years…

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 Zhu v The Queen

Details

AGLC: Zhu v The Queen [2013] NSWCCA 163
Case: [2013] NSWCCA 163
Decision Date: 09 July 2013

CaseChat Overview and Summary

Zhu, the appellant, sought to appeal his conviction on three counts of sexual intercourse without consent and two counts of sexual assault involving three separate victims. The appeal was heard in the New South Wales Court of Criminal Appeal. The central issue in the appeal was whether the course of events at trial gave rise to a miscarriage of justice due to the failure to order separate trials. Additionally, the court considered whether the relevant provisions of the Evidence Act 1995 (NSW) were correctly applied, particularly with respect to the use of tendency evidence. The appellant, a practitioner of traditional Chinese medicine, argued that the jury should have been directed as to "for proper medical purposes" in relation to the offence contrary to s61H(1) of the Crimes Act 1900. The court also examined the significance of a question posed by the jury and whether it indicated that the evidence gave rise to the need for such a direction. Furthermore, the court assessed whether a direction was required even though the appellant had not raised the issue "for proper medical purposes." Lastly, the court considered whether the jury was properly directed as to the appellant's good character.

The court found that there was no miscarriage of justice in the trial proceedings, as the course of events did not prejudice the appellant. The application of the Evidence Act 1995 (NSW) was deemed correct, and the use of tendency evidence did not result in a miscarriage of justice. The court held that no direction as to "for proper medical purposes" was necessary, as the evidence did not raise such an issue. The jury question did not indicate that the evidence necessitated such a direction. The court further determined that no direction was required even though the appellant had not raised the issue "for proper medical purposes." Finally, the court found that the jury was properly directed as to the appellant's good character.

As a result of the court's findings, the appeal was dismissed. The appellant's conviction on three counts of sexual intercourse without consent and two counts of sexual assault involving three separate victims was upheld.

Orders