Citation: Xiao v R [2022] NSWCCA 95
Court: NSW Court of Criminal Appeal
Date: 13 May 2022
Judge(s): Price J (principal judgment); Harrison J; Ierace J (both agreeing)
Background
The appellant was a practitioner and teacher of "Paida Lajin Self-Healing," a method involving slapping, stretching, and fasting, which he promoted as capable of treating chronic conditions including Type 1 Diabetes. He authored materials encouraging participants to stop their medication, asserting that self-healing techniques could normalise blood sugar levels.
A seven-year-old boy with Type 1 Diabetes attended the appellant's workshop in April 2015 with his parents. The child had been formally diagnosed and trained carers had been instructed by Westmead Children's Hospital on managing his condition, including the administration of insulin injections and blood glucose monitoring. Over the course of the workshop, the child's insulin was discontinued.
The child died as a result. The appellant was charged and, following a jury trial in the District Court, convicted of manslaughter by criminal negligence under s 18(1)(b) of the Crimes Act 1900 (NSW). He was sentenced to 10 years' imprisonment with a non-parole period of 7 years and 6 months. He appealed against both conviction and sentence.
Legal Issues
- Whether the trial judge failed to fairly and adequately put the defence case to the jury in the summing-up (Ground 1)
- Whether a miscarriage of justice arose from a direction that the jury could give less weight to exculpatory statements in the appellant's electronically recorded interview than to his admissions (Ground 2)
- Whether the summing-up impermissibly invited the jury to reason that the appellant was conscious of his guilt, without a proper direction in accordance with Edwards v The Queen (Ground 3)
- Whether the verdict was unreasonable (Ground 4)
- Whether, in circumstances where no objection was taken to the summing-up at trial, leave to appeal should be granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021
Decision
Ground 1: Failure to put the defence case. The Court found this ground established. The trial judge's summing-up did not provide a fair and balanced identification of the issues or of the defence case. This was the determinative ground. Because no objection had been raised at trial, the Court was required to consider whether the failure constituted a miscarriage of justice, applying the principle that an unexplained failure to object is ordinarily a reliable indicator that the summing-up was adequate. However, the Court was satisfied that the deficiency in this instance was sufficiently serious to warrant intervention, and it granted leave to appeal under r 4.15.
Grounds 2 and 3. The Court noted that, having found Ground 1 established, it was unnecessary to deal with Grounds 2 and 3 discretely. However, both grounds were considered in the context of the unreasonable verdict ground (Ground 4).
Ground 4: Unreasonable verdict. The Court dismissed this ground. Price J found that, while there were difficulties with the evidence of the deceased's mother (including inconsistencies in blood glucose readings), there was significant overall support for the jury's assessment of her honesty and reliability. It was open to the jury to find that the appellant placed no reliance on the blood glucose readings and was not misled. On the whole of the evidence, those difficulties were not sufficient to cause a rational jury to entertain a reasonable doubt as to guilt.
The Court accordingly allowed the appeal, quashed the conviction, and ordered a new trial.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Conviction entered in the District Court of NSW on 18 October 2019 quashed
- New trial ordered
- Matter listed for mention at the Sydney District Court on 11 March 2022
Key Takeaways
- A trial judge's summing-up must provide a fair and balanced identification of the issues and the respective cases of the Crown and the accused; failure to do so can constitute a miscarriage of justice sufficient to quash a conviction, even where no objection was taken at trial.
- Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 operates as a significant threshold for raising summing-up complaints on appeal that were not objected to at trial; an unexplained failure to object is ordinarily treated as a reliable indicator that the summing-up was adequate, but this is not an absolute bar.
- A verdict is not unreasonable simply because there are difficulties or inconsistencies in parts of the evidence; the appellate court asks whether a rational jury, acting on the whole of the evidence, could not have been satisfied beyond reasonable doubt of guilt.
- Grounds 2 and 3 (relating to the exculpatory statements direction and consciousness of guilt) were left unresolved on their merits, as the conviction was quashed on Ground 1 alone.
- In dismissing the unreasonable verdict ground, the Court of Criminal Appeal reaffirmed that significant weight attaches to the jury's advantage in seeing and hearing witnesses, and appellate intervention on this basis requires a high threshold.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18(1)(b)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases
- ARS v R [2011] NSWCCA 266
- B v The Queen [1992] HCA 68; 175 CLR 599
- Domican v The Queen [1992] HCA 13; 173 CLR 555
- Edwards v R [1993] HCA 63; 178 CLR 193
- Mule v The Queen [2005] HCA 49; 79 ALJR 1573
- Nguyen v The Queen [2020] HCA 23; 269 CLR 299
- Pell v The Queen [2020] HCA 12; 268 CLR 123
- Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202
- R v Murray (1987) 11 NSWLR 12
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308
- Trevascus v R [2021] NSWCCA 104; 104 NSWLR 571