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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: NSW Court of Criminal Appeal
Date: 7 October 2020
Judge(s): Hoeben CJ at CL; Rothman J; N Adams J

Background

The appellant was convicted in the District Court at Sydney in February 2019 on two charges arising from events on 14 November 2010: administering an intoxicating substance with intent to commit sexual assault (s 38(a), Crimes Act 1900 (NSW)), and sexual intercourse without consent (s 61I, Crimes Act 1900 (NSW)). He was sentenced to an aggregate term of nine years and six months, with a non-parole period of six years and four months.

The Crown case was that the appellant, a chef whose father owned a restaurant where the complainant worked as a waitress, invited the complainant to his home under the pretence of a work handover. After drinking a cup of tea he had prepared, the complainant lost consciousness and had no memory until waking the following morning. Toxicology evidence identified the drug triazolam in her urine at levels well above the therapeutic range, and DNA matching the appellant's profile was found in a vaginal swab.

A central piece of Crown evidence was a handwritten note, referred to as Exhibit A, said to have been written by the appellant at a cafe meeting the day after the offences. The note, written in Chinese characters on the back of a cafe receipt, was translated as an apparent admission that the appellant had drugged and assaulted the complainant. The appellant denied writing the note. The conviction appeal turned entirely on the trial judge's directions to the jury about how to approach the comparison of handwriting.

  • Whether the trial judge's directions to the jury on comparing handwriting evidence were legally correct and adequate.
  • Whether any error in those directions caused a miscarriage of justice within the meaning of r 4 of the Criminal Appeal Rules (NSW), such that leave to appeal should be granted.

Decision

Rothman J (with whom Hoeben CJ at CL agreed) examined the trial judge's summing-up in detail. The trial judge directed the jury to exercise care when comparing the handwriting in Exhibit A with other known samples of the appellant's writing, consistent with the approach endorsed in R v Doney (2001) 126 A Crim R 271 and Collins v R [2006] NSWCCA 162. Those authorities confirm that juries may make handwriting comparisons but must be cautioned to do so carefully, given the limitations of lay comparison evidence.

Rothman J found no error in the direction given. The trial judge had appropriately drawn the jury's attention to the care required, had referred to expert evidence on the topic, and had not misdirected the jury on the applicable principles. The direction was consistent with the requirements established by the relevant authorities and did not misstate the law.

Even if any deficiency could be identified in the direction, the court was not satisfied that it produced a miscarriage of justice. The strength of the Crown case was significant: it included DNA evidence, toxicology evidence, a fingerprint of the appellant found on Exhibit A itself, and evidence from the complainant's roommate and (then) boyfriend about the circumstances in which the note was written. Against that background, any error in the handwriting direction could not realistically have affected the outcome.

N Adams J agreed in the result but expressed a preference for disposing of the matter by refusing leave under r 4, rather than finding no error. Her Honour was not satisfied that the appellant had lost a real chance of acquittal by reason of the impugned direction, which is the threshold required for leave under r 4. Given her agreement with the orders proposed by Rothman J, she joined in those orders.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that juries may compare handwriting samples but must be directed to exercise care when doing so, consistent with the principles in R v Doney and Collins v R.
  • No error was established in the trial judge's handwriting direction where the summing-up adequately cautioned the jury and correctly reflected the relevant authorities.
  • Under r 4 of the Criminal Appeal Rules, leave to appeal on the basis of a misdirection requires the appellant to establish at least a real chance, fairly open, of acquittal had the error not occurred.
  • Where the Crown case includes independent corroborating evidence, such as DNA, toxicology results, and fingerprint evidence, a claimed deficiency in a direction on one piece of evidence is less likely to satisfy the miscarriage of justice threshold.
  • A divergence of approach among the judges (error versus r 4 refusal) did not affect the outcome, as both routes led to dismissal of the appeal.

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
- Papakosmas v The Queen (1999) 196 CLR 297
- Greenhalgh v R [2017] NSWCCA 94
- ARS v R [2011] NSWCCA 266