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Court of Criminal Appeal 7 October 2020

Shi v R

[2020] NSWCCA 258

Sexual offences
CRIME SENTENCE APPEAL OPERATION OF RULE 4 NO ERROR AND NO MISCARRIAGE

Citation: Shi v R [2020] NSWCCA 258
Court: Court of Criminal Appeal
Date: 7 October 2020
Judges: Hoeben CJ at CL; Rothman J; N Adams J

Background

The applicant stood trial in the District Court at Sydney in early 2019 on charges of administering a drug and sexual intercourse without consent, both arising from a single incident on 14 November 2010. The Crown's case was that the applicant had drugged the complainant, a former work colleague, by lacing her milk tea with triazolam before engaging in sexual intercourse while she was unconscious. The applicant was not arrested until November 2017, having spent several years in China after police first attempted to contact him in 2011.

The applicant denied both charges. He maintained the relationship with the complainant had been consensual and ongoing, that the complainant had self-administered sleeping medication he had provided, and that the incident had been deliberately fabricated by the complainant to explain her lack of virginity to a new boyfriend.

A central dispute at trial concerned a handwritten note in Chinese characters (Exhibit A), which the complainant and her then-boyfriend said the applicant wrote at a cafe meeting the day after the incident as a form of confession or assurance. The applicant denied authorship of the note. The applicant's left index fingerprint was found on the paper. Both sides sought to use handwriting comparisons to support their respective positions, and the adequacy of the trial judge's directions to the jury about those comparisons formed the sole ground of the conviction appeal.

Legal Issues

  • Whether the trial judge's directions to the jury on handwriting comparison occasioned a miscarriage of justice
  • Whether the warning given to the jury about the limitations of lay handwriting comparison was too restrictive or otherwise impermissible
  • Whether rule 4 of the Criminal Appeal Rules (NSW) applied, given that no objection to the directions had been taken at trial, and if so whether leave should be granted

Decision

Ground 1: Application of Rule 4

Rule 4 of the Criminal Appeal Rules (NSW) operates so that, where no objection to a direction or ruling was taken at trial, leave of the Court of Criminal Appeal is required before that direction or ruling can form a ground of appeal. The applicant argued that submissions had been made at trial about the propriety of handwriting comparison, effectively preserving the point. Rothman J rejected this, finding that those earlier submissions related to the admissibility of documents and to a different context, not to the subsequent warning given in the summing up (at [63]-[67]). The trial judge had commendably invited both parties to raise any concern about the direction immediately after giving it, and neither did so (at [52], [66]). Accordingly, Rothman J held that rule 4 applied, but granted leave on the substance (at [67]-[68]). N Adams J agreed on the result but would not have granted leave, being unsatisfied that the applicant had lost a real chance of acquittal (at [96]-[99]).

Ground 1 (Substance): The Handwriting Comparison Direction

The trial judge directed the jury that it could compare the numerals on the disputed note with numerals on other exhibits bearing the applicant's acknowledged handwriting, but that it could not reliably compare Chinese characters it could not read. The judge warned the jury to exercise care because jurors were not handwriting experts, the sample size was small, and handwriting may vary depending on context (at [85]-[87]). Rothman J held the trial judge was correct to admit the comparison evidence and equally correct to provide the warning (at [88]). Section 165 of the Evidence Act 1995 required the judge to warn the jury that such evidence may be unreliable and to explain why, which is precisely what the judge did (at [89]).

Rothman J characterised the warning as balanced: it did not remove the jury's ability to perform the comparison, but equipped the jury to assess what weight to give the result (at [85]-[88]). The complaint that the warning effectively answered the question for the jury was rejected. The direction that the Crown must prove authorship of Exhibit A beyond reasonable doubt may not even have been strictly necessary under the principles in Shepherd v The Queen (where authorship was one step in a chain of reasoning rather than an indispensable intermediate fact), but that aspect operated in the applicant's favour and could not ground a complaint (at [92]-[93]).

No Miscarriage of Justice

Even if some element of the direction had been imperfect, Rothman J found there was abundant evidence of guilt independent of Exhibit A, including the scientific evidence of sexual intercourse, the toxicological evidence about triazolam ingestion, the roommate's account of the complainant being returned unconscious, the applicant's eventual admission that intercourse had occurred, and the inconsistencies between the applicant's police interview and his trial evidence (at [94]). The authorship of the note was described as "a minor and not particularly compelling aspect of the Crown case" (at [94]). No miscarriage of justice was established (at [95]).

Orders Made

  • Leave granted under rule 4 of the Criminal Appeal Rules (NSW) to argue the ground of appeal
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Section 165 of the Evidence Act 1995 requires a trial judge to warn the jury that lay handwriting comparison evidence may be unreliable and to explain the reasons for that unreliability, including the limited sample size and the jury's lack of expertise. A warning to that effect is not an error but an obligation (at [89]-[90]).

  • A direction permitting the jury to compare handwriting while cautioning it to be careful about the result does not constitute a miscarriage of justice, provided the jury retains the function of performing the comparison and reaching its own conclusions (at [85]-[88], [95]).

  • Where a trial judge proactively invites submissions from both parties on a direction immediately after giving it and neither party objects, rule 4 of the Criminal Appeal Rules (NSW) applies, and leave is required before that direction can form a ground of appeal on conviction (at [52], [67]).

  • Not every disputed fact at trial is an indispensable intermediate step requiring proof beyond reasonable doubt in its own right. Following Shepherd v The Queen, a direction requiring the Crown to prove such a fact to that standard may be unnecessary but, where it benefits the accused, it cannot ground a complaint (at [92]-[93]).

  • In dismissing the appeal, the Court of Criminal Appeal emphasised that the strength of the remaining Crown evidence, including forensic, toxicological, and witness evidence, meant that even if the handwriting direction had been imperfect, it would not have occasioned a substantial miscarriage of justice (at [94]-[95]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 38(a), 61I
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW) , ss 135, 165

Cases
- Collins v R [2006] NSWCCA 162 R v Doney (2001) 126 A Crim R 271; [2001] NSWCCA 463 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56