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Court of Criminal Appeal 6 December 2024

Zhao v R

[2024] NSWCCA 229

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT TWO COUNTS OF SEXUAL OFFENCES APPEAL ALLOWED

Citation: Zhao v R [2024] NSWCCA 229
Court: Court of Criminal Appeal, New South Wales
Date: 6 December 2024
Judge(s): N Adams J (leading judgment); Ierace J and Sweeney J (agreeing)

Background

The applicant stood trial in the District Court in September 2023 on two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). Both alleged incidents occurred in November 2020, when the applicant and complainant were in a casual sexual relationship. The complainant had repeatedly sought a more committed relationship, which the applicant declined, though the pair continued meeting consensually.

The first count alleged that the complainant withdrew her consent during intercourse on 14 November 2020 and the applicant persisted. The second count alleged the complainant did not consent at all to intercourse on 19 November 2020. The Crown's case rested largely on the complainant's evidence, supplemented by electronic communications extracted from her phone and WeChat messages tendered by the defence.

The jury acquitted the applicant on Count 1 and convicted him on Count 2. He was sentenced to three years' imprisonment with an 18-month non-parole period, then released on bail pending appeal.

  • Whether the jury's verdict on Count 2 was unreasonable and could not be supported on the whole of the evidence (Ground 1)
  • Whether the acquittal on Count 1 was inconsistent with the conviction on Count 2 (Ground 2)

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal on Ground 1, making it unnecessary to consider Ground 2.

On the unreasonable verdict question, the Court applied the established test: whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. The Court conducted its own independent assessment of the evidence, while acknowledging the jury's advantage in seeing and hearing witnesses directly. That advantage, however, only permits an appellate court to defer where it is capable of resolving the court's doubt; it does not foreclose the court's independent review.

N Adams J identified several specific aspects of the complainant's evidence that should have caused a rational jury to hold a reasonable doubt on Count 2. These included: the timing of her first complaint to police; the explanations she gave the applicant for her reasons in going to police; inconsistencies between what she said in a telephone call (recorded without the applicant's knowledge) and her evidence to police; and her claim that police had asked her to gather more evidence, when police evidence established the opposite had occurred.

All three judges independently assessed the evidence and reached the same conclusion: the complainant's evidence lacked sufficient quality, consistency, and reliability to prove guilt beyond reasonable doubt. The Court noted that a jury ought to have entertained a reasonable doubt in relation to Count 2, just as it had on Count 1.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Conviction quashed
  • Order of acquittal entered

Key Takeaways

  • An appellate court conducting an unreasonable verdict review must make its own independent assessment of the evidence and determine whether it was sufficient in nature and quality to eliminate any reasonable doubt, not merely whether the jury could have accepted the complainant's account.
  • The jury's advantage in seeing and hearing witnesses is a significant consideration, but it only justifies appellate deference where that advantage is actually capable of resolving the doubt the appellate court has formed.
  • Arguing that a complainant's post-incident behaviour was inconsistent with how a sexual assault victim would behave is not a reliable basis for challenging a conviction on reasonableness grounds; the Court of Criminal Appeal confirmed this approach is unhelpful.
  • Where specific inconsistencies and discrepancies in a complainant's evidence go to the core of the Crown case (rather than peripheral matters), those deficiencies can, cumulatively, render a guilty verdict unreasonable even where credibility assessments are ordinarily left to the jury.
  • A split verdict, where a jury acquits on one count and convicts on a factually connected count arising from the same relationship and period, may inform an appellate court's assessment of whether the conviction on the remaining count was reasonably open.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HE, 61I
- Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Surveillance Devices Act 2007 (NSW), s 7(1), (3)

Cases
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Harper v R [2022] NSWCCA 211
- Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220
- RM v R [2024] NSWCCA 148
- JL v R [2023] NSWCCA 99
- AS v R [2022] NSWCCA 291
- Z (a pseudonym) v R [2022] NSWCCA 8
- Hodgson v R [2022] NSWCCA 72
- Reed v R [2006] NSWCCA 314