Luo v R

The Application to this Court

1. It is in the last mentioned conclusion of the trial judge in the verdict judgment that the answer to the present application is found.
2. The applicant has pleaded 84 somewhat diffuse and periphrastic grounds. No doubt because the applicant was unrepresented with respect to this application, and because English is not his native language, the grounds are frequently repetitive, prolix, and difficult to understand. They also advance arguments not made before the trial judge by the applicant, with significant variation between the case at first instance and that before this Court. These features militate against a grant of leave to advance the appeal. It is not the role of this Court to scrutinise hundreds of pages of material searching for an arguable ground of appeal and thereafter frame an applicant's argument for him; neither is it open as a matter of course to an applicant to advance a different case in this Court to that made at first instance.
3. I am not unmindful, however, of the difficulties facing an unrepresented litigant, and particularly a litigant with limited English language skills. I would not grant leave to the applicant to advance the 84 grounds pleaded but, bearing in mind the obvious difficulties he had in advancing his application, I propose to consider what I take to be his overarching complaint.
4. When reduced to something more manageable, the applicant's real grievance is in the outcome of his costs application. He contends that there were errors of fact and law in the verdict judgment such that the trial judge erred in accepting that the Crown had proved elements 1 to 5 of the charge; and that error in turn led to the erroneous disposition of the costs application. The applicant's argument, when reduced to essentials, is that it was unreasonable for the Crown to commence the prosecution against him, and the trial judge should have so concluded and granted his application for a costs certificate.
5. In support of that overall argument the applicant's contention is that, because the trial judge found that his treatment of Ms Xia was not so wicked as to attract the sanction of the criminal law, it was not a criminal case at all, and the prosecution should never have been commenced by the Crown. The argument is, however, flawed. It mistakes the failure by the Crown to prove the sixth element of manslaughter by gross negligence with a conclusion that the case was not one properly placed before a criminal court. As the trial judge concluded in the costs judgment, satisfaction of proof of the sixth element was "a judgment call", with respect to which a tribunal of fact differently constituted may have reached a different conclusion. Put another way, precisely the same evidence before, as an example, a jury of twelve, could conceivably have led to the applicant being found guilty of Ms Xia's manslaughter. As his Honour observed: "Here, the prosecution had a case in which there is little doubt as I articulated in my judgment of 25 March 2022 that the acts of the applicant did play a very significant role in the ultimate death of the deceased in this matter. As I noted in my judgment in my view he still has a significant moral responsibility in her death."
6. In my assessment the evidence to establish the factual elements of the offence (elements 1 to 5) was, as the trial judge concluded, overwhelming and it was well open to his Honour to find that, in the context of offering treatment as a practitioner of Chinese medicine, the applicant counselled Ms Xia to abandon conventional treatment and management of her diabetic condition, leading to an immediate and disastrous decline in her health, which the applicant failed to recognise, and with respect to which he neither sought nor advised appropriate medical treatment. Those acts contributed directly and significantly to Ms Xia's death, with the cause of death a complication of her diabetic condition and not, as the applicant asserted, a heart attack. Where the Crown case failed was in the evaluative element of whether that conduct was so wicked as to be criminal. In those circumstances, the trial judge concluded, "I do not think it was unreasonable to institute the proceedings. In my view, given the significant moral role that the applicant played in the death of the deceased, given the actual factual role he played in […] the demise of the deceased and given the capacity that those combination of features could have potentially on a reasonable basis have made out the wickedness required to establish manslaughter; I'm of the view that it was reasonable to institute the proceedings and continue them."
7. Section 2 of the Costs in Criminal Cases Act provides, relevantly, as follows: 2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may - (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, […] grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. […].
8. Section 3 relevantly is in these terms: 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate - (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, […].
9. Of importance to the decision to refuse the certificate is the conclusion of the trial judge that the "relevant facts" referred to in s 3(1)(a), being those required to be established in proof of the first five elements of the offence, were each proved beyond reasonable doubt by the Crown at trial. It was only with respect to that aspect of proof of the charge that called for a value judgment by the application of the standards of a reasonable person, where proof to the criminal standard was not reached. An evaluative judgment of that nature is classically in the province of the jury or other tribunal of fact. On that basis it could not be said to have been unreasonable for the Crown to place the matter before a tribunal of fact for determination by a court. The trial judge was in my opinion correct to so hold.
10. The evidence before the trial court readily established to the criminal standard the following factual matters. 1. The applicant, in the context of treating Ms Xia for a skin condition, told her not to take the Western medicine she was prescribed for treatment of diabetes, also counselling her to give up the restrictive diet prescribed to her for management of her condition. Ms Xia told a number of people about this after consulting the applicant, and the applicant conceded to investigating police in an electronically recorded exchange that he had done so. 2. In giving Ms Xia that advice and commencing to treat her the applicant assumed a legal duty of care to her, at least to do her no harm. 3. He continued in his advice to Ms Xia not to take any Western medication, even after she became visibly very ill, and he failed to recognise that she needed medical treatment, thereby further breaching the duty of care owed to her. 4. Because of the cessation of medication to manage Ms Xia's diabetes she became very ill and died from diabetic ketoacidosis as a result of the withdrawal of diabetes treatment. The applicant's treatment of Ms Xia was negligent, and a direct and substantial cause of her death.
11. On the basis of the evidence to establish these propositions, it can also be concluded that, although the trial judge was not satisfied that this negligence was so wicked as to call for criminal sanction, it was open for the contrary conclusion to be reached. It was not unreasonable for the prosecutor to commence and continue the prosecution of the applicant.
12. There is no error in my conclusion in the decision of the trial judge to decline to grant a costs certificate to the applicant.

Fresh Evidence and Leave

1. The remaining issues concern grants of leave.
2. The applicant sought to rely upon evidence that was not before the trial judge, at trial or on the costs application before his Honour. The material related to alternative translations of some of the primary evidence. The evidence is not fresh, as that word is generally understood in an appellate context. That is, it is not evidence that was unavailable to the applicant at trial, either actually or constructively: R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356, at [63]. Even if that is not a relevant question where the Court is hearing an appeal against an interlocutory order rather than an appeal against conviction, it is of relevance to observe that alternative translations of Chinese language evidence was not sought out for the District Court proceedings because there was no question raised as to the accuracy of those that were available. The position of the applicant's counsel at trial in that regard suggests that the absence of the now proffered evidence did not cause the trial judge's determination of the verdict or the question of costs to miscarry. I would refuse leave to adduce the additional evidence.
3. With respect to leave to advance the appeal, this is a matter in which the question would ordinarily be approached with a degree of circumspection. In Rodden this Court said, at [103] - [104]: "This Court would ordinarily not grant leave to appeal from an evaluative decision where the decision was open to the primary judge and where he or she had the benefit of knowledge of the underlying proceedings, and the circumstances of the trial as they unfolded. The desirability of the trial judge making such an evaluation, and his or her advantages in so doing, were noted in Manley. In most cases in which there is an appeal from the grant or refusal to grant a certificate, the trial judge will be best placed to make the assessments referred to in s 3. Unless some issue of principle is raised or a question of public importance arises or there is some palpably wrong decision on the facts, it can be expected that this Court will ordinarily either refuse leave or limit the grant of leave to exclude a factual challenge to the merits of the assessment and formation of opinion made under s 3 of the Act."
4. Even though the trial judge's decision was well open, and no question of public importance arises, I would allow a very limited grant of leave, principally because the applicant is disadvantaged by his poor English language skills and unrepresented, both in this Court and below on the costs application. I would grant leave to consider an overarching complaint as to whether the trial judge erred in refusing to grant a s 2 certificate.
5. That question should be answered in the negative. Accordingly, the orders I propose are these: 1. Grant leave to argue error in the refusal of the District Court to grant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW); 2. Refuse leave to adduce additional evidence; 3. Dismiss the appeal.

Endnote

1. The deceased's name is spelled in different ways in the material; this spelling reflects that in the indictment as amended on 9 February 2022. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2024