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Court of Criminal Appeal 31 August 2022

Xie v R

[2022] NSWCCA 185

Sexual offencesDrugs
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT APPEALS APPEAL AGAINST CONVICTION

Citation: Xie v R [2022] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 31 August 2022
Judges: Bell CJ; Mitchelmore JA; Yehia J

Background

The appellant was convicted in the District Court at Parramatta on 10 of 12 counts arising from alleged offending against three complainants between 2017 and 2018. He was acquitted on two counts. The offences centred on an apartment he maintained separately from his family home in Sydney's inner west.

The charges fell into two broad groups. Counts 1 and 2 involved a male complainant (RK), whom the appellant had encountered lost in a park and driven to his apartment. RK alleged he was rendered unconscious after drinking a beverage and sexually assaulted while incapacitated. Count 1 specifically charged the appellant with causing RK to simultaneously consume three drugs, methylamphetamine, dexmedetomidine, and hyoscine, via a single drink. Counts 4 through 12 involved a second male complainant (MO), who was lured to the apartment under a false identity created by the appellant on a dating application. Count 4 charged the appellant with causing MO to take methylamphetamine; Counts 5 to 12 charged various indecent and sexual assaults on MO.

The appellant maintained that both complainants had consumed drugs voluntarily and had engaged in consensual sexual activity. The jury convicted on Counts 1, 2, and 5 to 12, and acquitted on Counts 3 and 4. On appeal, the appellant challenged all convictions on three grounds: that the verdict on Count 1 was unreasonable, that the Crown prosecutor's closing address caused a miscarriage of justice, and that a portion of the appellant's statement to police had been wrongly admitted into evidence.

  • Whether the trial judge erred in rejecting the no-case submission on Count 1, and whether the jury's verdict on that count was unreasonable in the absence of direct evidence linking the appellant to the presence of methylamphetamine in RK's drink.
  • Whether the Crown prosecutor's closing address, particularly remarks about the appellant's propensity to lie, exceeded the proper bounds of prosecutorial conduct and caused a miscarriage of justice.
  • Whether admission of the appellant's police station statement (in which he referred to being "in big trouble" and asked for leniency) constituted error, or alternatively caused a miscarriage of justice.
  • Whether any miscarriage flowing from Counts 1 and 2 necessitated a retrial on Counts 5 to 12.

Decision

Ground 1: Unreasonable verdict on Count 1

The Court held unanimously that the verdict on Count 1 was unreasonable and could not stand. The Crown's case depended on the jury inferring that the appellant had placed all three substances into a single drink given to RK. However, a police search of the apartment produced no vessel containing traces of all three substances together. The cup that did contain dexmedetomidine and hyoscine had no trace of methylamphetamine. The Court found that drawing the inference the Crown invited would have required the jury to engage in speculation or conjecture rather than logical reasoning from the evidence. Because the case was inferential in nature, no particular deference was owed to the jury's fact-finding advantages. The count had been framed specifically as the simultaneous administration of all three drugs in a single drinking vessel, and that framing was critical to the assessment of the evidence against it.

The wrongful conviction on Count 1 was found to have inevitably affected the jury's consideration of consent in Count 2, which charged the sexual assault of RK. Accordingly, the Court ordered a new trial on Count 2, rather than substituting an acquittal. The Court was satisfied, however, that the wrongful convictions on Counts 1 and 2 had no contaminating effect on the verdicts concerning MO (Counts 5 to 12). The jury's acquittal on Count 4, the charge of drugging MO, demonstrated that the jury had independently and carefully assessed the evidence on each complainant's charges and returned guilty verdicts on MO's assault charges on a basis independent of any finding that he was first drugged.

Ground 2: Crown prosecutor's closing address

The Court refused leave to raise ground 2 under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, noting that experienced defence counsel made no objection at trial. Even if leave was not required, the Court dismissed the ground on its merits. The Crown prosecutor's remarks about the appellant's credibility and propensity to lie did not cross the line into improper conduct. The references were not without foundation in the evidence, and the jury's constitutional function was not compromised.

Ground 3: Admission of the police statement

The Court dismissed ground 3. The admission of the relevant portion of the appellant's statement to the detective, including his expressions of concern about the evidence and requests for leniency, did not constitute error or occasion a miscarriage of justice.

Orders Made

  • Leave to appeal granted to the extent necessary, other than in respect of the second ground.
  • Conviction on Count 1 set aside and quashed; verdict of acquittal directed on Count 1.
  • New trial ordered on Count 2.
  • Appeal otherwise dismissed in relation to Counts 5 to 12.
  • Proceedings remitted to the District Court for resentencing in light of the acquittal on Count 1.
  • Matter listed in the District Court Arraignment List on 9 September 2022.

Key Takeaways

  • Where the Crown's case rests entirely on inference, a jury verdict is unreasonable if the inference it requires goes beyond what the evidence logically supports and amounts instead to speculation or conjecture. This principle applied directly to the Count 1 finding.
  • The precise formulation of a charge matters when assessing whether a verdict is unreasonable. The Court evaluated the evidence against Count 1 by reference to the specific allegation that all three drugs were administered simultaneously in a single vessel, not by reference to the wider fact that all three substances were found in RK's system.
  • A wrongful conviction on a count that is closely connected to the issue of consent or voluntariness on an adjacent count may infect the verdict on that adjacent count sufficiently to warrant a new trial, even without direct contamination of the fact-finding.
  • Where a jury acquits on a foundational charge (such as the drugging of MO in Count 4) but convicts on the resulting assault charges, the acquittal can demonstrate that the jury engaged in independent and differentiated reasoning, insulating those convictions from challenge based on errors in other groups of counts.
  • Failure by experienced defence counsel to object to aspects of a closing address during trial is a significant factor in the Court of Criminal Appeal's assessment of whether leave to raise that ground on appeal should be granted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 38(b)
- Criminal Procedure Act 1986 (NSW), s 130A
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
- Ritchie (a pseudonym) v R [2019] VSCA 202
- Seltsam Pty Ltd v McGuiness (2002) 49 NSWLR 262; [2000] NSWCA 29
- Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
- Ford (a pseudonym) v The Queen (2020) 63 VR 405; [2020] VSCA 162
- Bugeja v The Queen (2010) 30 VR 493; [2010] VSCA 321
- Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330
- FX v R; GX v R (2020) 290 A Crim R 31; [2020] NSWCCA 189
- Zurshig v R [2021] NSWCCA 309
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
- Whitehorn v R