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Court of Criminal Appeal 6 September 2019

Xu v R

[2019] NSWCCA 178

Sexual offences
CRIME CONVICTION APPEAL WHETHER VERDICT IS UNREASONABLE

Citation: Xu v R [2019] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 6 September 2019
Judge(s): Bathurst CJ, Harrison J, N Adams J

Background

The appellant was convicted at trial of one count of indecent assault and one count of sexual assault, both arising from an incident on 12 August 2017. He was acquitted of five further counts relating to a separate incident one week later. The central factual dispute at trial was whether the complainant had consented to the sexual acts, with the appellant maintaining throughout that he had.

The appellant and the complainant were university acquaintances. Their relationship had a complicated history involving rejected romantic advances, self-harm threats communicated by text, gift-giving, and an eventual return to friendship. The two men had spent the day together at the appellant's unit in Wollongong watching a television series when the alleged offending occurred.

Following the jury's verdicts, the appellant appealed to the Court of Criminal Appeal on four grounds, arguing that his trial had miscarried for several reasons and that the guilty verdicts were unreasonable in light of the acquittals on the remaining counts.

  • Whether the trial miscarried because defence counsel failed to adduce evidence of the appellant's prior good character and otherwise conducted the defence inadequately
  • Whether the guilty verdicts on counts 1 and 2 were unreasonable, unsafe, or unsatisfactory, and could not be supported having regard to the evidence and the acquittals on the remaining counts
  • Whether a miscarriage of justice arose from the admission of evidence about the complainant's physical symptoms (persistent headaches and a prolonged erection) said to have been experienced on 12 August 2017
  • Whether a miscarriage of justice arose from the admission of opinion evidence from the complainant's mother expressing a belief, formed on reading text messages, that her son had been sexually assaulted

Decision

The Court allowed the appeal on multiple grounds, quashing the convictions and entering verdicts of acquittal. The orders were made on 28 June 2019, with Harrison J's reasons explaining his concurrence in those orders.

On the unreasonable verdict ground, Harrison J expressed serious doubts about the Crown case. The reasons addressed the significance of the complainant returning to the appellant's home one week after the alleged assault, with the trial judge characterising that return as "defies common sense" in the specific circumstances of this case. While Harrison J did not agree with that framing, his Honour found the convictions on counts 1 and 2 unreasonable on different bases, concluding that the verdict could not be sustained having regard to the evidence as a whole.

Even setting aside the unreasonable verdict finding, the Court considered that discretionary grounds under s 8(1) of the Criminal Appeal Act 1912 (NSW) independently justified not ordering a retrial. The appellant had already served his full non-parole period. In addition, a fair retrial would have been impracticable because the underlying facts would have had to be artificially confined to remove the second incident, which had given rise to the original complaint when the complainant's mother read a text message about lubricant and concluded her son had been assaulted.

The Court noted that while the discretion whether to order a new trial ordinarily rests with the Director of Public Prosecutions, the circumstances here engaged the Court's broad power under s 8(1) to decline to order a retrial. On that basis, and in the context of the success on multiple grounds, verdicts of acquittal were entered.

Orders Made

  • The appeal was allowed
  • The convictions for indecent assault and sexual assault were quashed
  • Verdicts of acquittal were entered in place of the convictions

Key Takeaways

  • The Court of Criminal Appeal confirmed that a conviction may be quashed as unreasonable under the principles in M v The Queen and related authorities where the evidence, viewed as a whole, cannot rationally support the verdict.
  • A complainant returning to the scene of an alleged sexual assault does not automatically defy common sense or undermine credibility; the Court of Criminal Appeal declined to make generalisations about how any particular alleged victim ought to behave, noting the need to assess such conduct in its specific context.
  • Where multiple grounds of appeal succeed and a retrial would be practically unfair, the court's discretion under s 8(1) of the Criminal Appeal Act 1912 (NSW) may support the entry of acquittals rather than a new trial, even where that discretion would ordinarily be exercised by reference to the Director of Public Prosecutions' position.
  • Admission of prejudicial evidence, including lay opinion evidence as to the ultimate question of whether a sexual assault had occurred, was identified as a miscarriage of justice ground capable of independently affecting the outcome.
  • Inadequate conduct by trial counsel, including failure to adduce good character evidence, was raised as a basis for miscarriage of justice, reflecting the established principle that incompetent representation can vitiate a trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 8(1)

Cases
- CR v R [2017] NSWCCA 29
- M v The Queen (1994) 181 CLR 487
- MacKenzie v The Queen (1996) 190 CLR 348
- Matthews v R [2013] NSWCCA 187
- Melbourne v The Queen (1999) 198 CLR 1
- MFA v The Queen (2002) 213 CLR 606
- Nudd v The Queen (2006) 225 ALR 161
- SKA v The Queen (2011) 243 CLR 400
- The Queen v Baden-Clay (2016) 258 CLR 308
- TK v R (2009) 74 NSWLR 299
- TKWJ v The Queen (2002) 212 CLR 124