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Court of Criminal Appeal 21 April 2023

Xu v R

[2023] NSWCCA 93

Sexual offencesAssault & violence
CRIM INAL LAW CONVICTION APPEAL APPLICATION FOR EXTENSION OF TIME SEVEN GROUNDS OF APPEAL EXAMINED ON A PARTICULAR DOCUMENT WHETHER THE VERDICTS W ERE UNREASONABLE

Citation: Xu v R [2023] NSWCCA 93
Court: NSW Court of Criminal Appeal
Date: 21 April 2023
Judges: Garling J, Hamill J, N Adams J (with reasons; Garling and Hamill JJ agreeing)

Background

The applicant was convicted in the District Court of seven sexual offences arising from an incident on 26 December 2015. The offences included three counts of assault with act of indecency, two counts of attempted intercourse without consent, one count of sexual intercourse without consent, and one count of common assault. He was sentenced to an aggregate term of four years' imprisonment with a non-parole period of two years and six months.

The applicant sought to appeal his convictions under s 5(1) of the Criminal Appeal Act 1912 (NSW). Because a significant delay had elapsed since the trial, he also required an extension of time to bring the appeal. By the time the matter was heard, the applicant had already served his entire sentence.

The appeal raised seven grounds, all directed at the convictions rather than the sentence. The grounds centred on how intoxication was handled at trial, the absence of expert evidence on that topic, a ruling preventing cross-examination on a document from the complainant's academic record, and a contention that the verdicts were unreasonable.

  • Whether an extension of time should be granted to bring the appeal
  • Whether the Crown prosecutor's opening address, which referred to substantial intoxication as relevant to consent, caused the trial to miscarry
  • Whether the trial judge erred by not discharging the jury following that opening address
  • Whether the trial judge erred by not immediately directing the jury on intoxication after the opening
  • Whether the absence of expert evidence on the complainant's level of intoxication led to a miscarriage of justice
  • Whether the trial judge wrongly prevented cross-examination of the complainant on a "cheat/fail" entry on her academic transcript
  • Whether the verdicts were unreasonable, including in light of proposed "new" evidence on intoxication, the complainant's residence, and CCTV footage

Decision

Extension of time and leave. The Court granted the extension of time, accepting that finality of proceedings warranted that course, even though Hamill J noted it was tempting to decline given the lengthy delay, the applicant having served his full sentence, and the lack of significant merit across the grounds.

Intoxication grounds (Grounds 1 to 4). The Court held that the Crown prosecutor's reference in her opening to substantial intoxication bearing on consent did not cause the trial to miscarry. The trial judge's directions to the jury on this topic were correct, and the jury was presumed to have followed them. The decision not to discharge the jury after the opening address was also upheld. A Crown prosecutor is permitted to open a case on alternative bases and to narrow the case at closing address. The absence of expert evidence on intoxication did not miscarry the trial; it remained a matter for the jury to assess on the evidence before it.

New evidence (Ground 5). The applicant sought to rely on evidence about the complainant's intoxication, her residence, and CCTV footage. The Court drew the established distinction between "fresh" evidence (genuinely unavailable at trial) and "new" evidence (available but not obtained). This evidence was characterised as new evidence. To succeed on that basis, the applicant had to show the evidence would prove his innocence or raise a doubt that guilt was established beyond reasonable doubt. The Court found the proposed evidence fell well short of that threshold.

Cross-examination on academic record (Ground 6). The complainant's academic transcript contained an entry reading "cheat/fail." The trial judge disallowed cross-examination on the entry, finding it could not substantially affect the jury's assessment of the complainant's credibility on the information available. The Court upheld that ruling. While a finding of academic cheating could in principle bear on a witness's credibility, the material lacked sufficient particularity and detail to meet the threshold for admissibility as credibility evidence under the Evidence Act 1995 (NSW). Hamill J acknowledged this was a matter on which minds might differ but agreed no error was established.

Unreasonable verdicts (Ground 7). The Court applied the test of whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt, the Court making its own independent assessment of that evidence. The Court found the Crown case was relatively strong. The alleged inconsistencies were all jury matters that had been raised at trial. Giving appropriate allowance for the jury's advantage in seeing and hearing the witnesses, particularly given that credit was the central issue, the Court concluded there was no significant possibility that an innocent person had been convicted.

Orders Made

  • Extension of time granted
  • Appeal dismissed

Key Takeaways

  • A conviction appeal on intoxication grounds will not succeed merely because the Crown opened on one basis (substantial intoxication) and then narrowed its case at closing; opening on alternative bases is a permissible prosecutorial approach.
  • Evidence of a complainant's intoxication in a sexual assault trial can be relevant on multiple grounds, not solely where the Crown relies on substantial intoxication to establish absence of consent.
  • The distinction between "fresh" evidence and "new" evidence carries significant consequences on appeal: new evidence (available but not adduced at trial) will only ground a miscarriage of justice if it proves innocence or raises a doubt that guilt was established beyond reasonable doubt.
  • Proposed cross-examination on a "cheat/fail" academic transcript entry was correctly disallowed where insufficient particularity existed to establish that it could substantially affect the jury's credibility assessment under the Evidence Act 1995 (NSW).
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed that where the central issues at trial turn on credibility, the advantage enjoyed by the jury in seeing and hearing witnesses is relatively wide, and must be factored into any independent appellate assessment of the evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61HA, 61I, 61L, 61P
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Criminal Procedure Act 1986 (NSW), s 159
- Evidence Act 1995 (NSW), ss 55, 101A, 102, 103

Cases
- Beattie v The Queen (2020) 287 A Crim R 287; [2020] NSWCCA 334
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Hamide v The Queen (2019) 101 NSWLR 455; [2019] NSWCCA 219
- Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
- Holt v R [2021] NSWCCA 140
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44
- SC v R [2023] NSWCCA 60
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Xie v The Queen (2021) 386 ALR 371; [2021] NSWCCA 1
- Zhou v The Queen [2021] NSWCCA 278