HEADNOTE
[This headnote is not to be read as part of the judgment]
Mr Xu (the applicant) was convicted of seven offences arising out of the sexual assault of a young woman on 26 December 2015. These 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.
The applicant was sentenced to an aggregate term of imprisonment of 4 years with a non parole period of 2 years and 6 months by Judge Noman SC at the District Court on 23 July 2018.
The applicant appealed the conviction under s 5(1) of the Criminal Appeal Act 1912 (NSW) on seven grounds. Four of the grounds asserted that the trial miscarried as a result of how the Crown prosecutor presented the issue of intoxication and the complainant's level of intoxication, and the trial judge's response to this. The fifth ground related to the absence of expert evidence on intoxication. The sixth ground related to the trial judge's ruling to disallow the complainant from being cross-examined on a "cheat-fail" on her academic record. The seventh ground contended that the verdicts were unreasonable.
The applicant required an extension of time to bring the appeal.
The court held, granting an extension of time and dismissing the appeal (per N Adams J, Garling and Hamill JJ agreeing):
1. In order to establish a miscarriage of justice, the applicant must show that there is a "real chance" that what occurred affected the jury's verdicts: [101].
2. Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA, applied; Zhou v The Queen [2021] NSWCCA 278, applied.
3. Evidence that a complainant in a sexual assault trial was intoxicated can be relevant on a number of bases, not just where the Crown is relying on substantial intoxication to establish a lack of consent: [158].
In respect of ground 1
1. The trial did not miscarry as a result of the Crown prosecutor's reference in her opening address to substantial intoxication being relevant to whether the complainant had freely and voluntarily agreed to have sexual intercourse with the applicant: [150]. The trial judge's directions were correct and it must be assumed that the jury followed those directions: [150].
2. Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, applied.
In respect of ground 2
1. The relevant question for an appellate court when considering a trial judge's decision not to discharge the jury is whether a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act has been established as a result of the decision: [152]. The trial judge's decision not to discharge the jury following the Crown prosecutor's reference in the opening address to substantial intoxication did not lead the trial to miscarry: [162].
2. Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, applied.
In respect of ground 3
1. The trial judge did not err in not directing the jury about intoxication immediately after the opening address; the directions were not required as they did not arise on the evidence: [154].
In respect of ground 4
1. Expert evidence as to the complainant's level of intoxication was not required on the facts of this case: [170]. Such evidence could be relevant but the decision not to adduce it did not lead the trial to miscarry. It was a matter for the tribunal of fact to consider the evidence of intoxication.
2. Holt v R [2021] NSWCCA 140, cited as an example.
3. It is permissible for a Crown prosecutor to open its case on alternate bases and to narrow the case for the closing address: [174]. To do so did not represent a departure from the Crown case at opening in this matter.
In respect of ground 5
1. "Fresh" evidence is evidence of which the applicant was unaware at the time of their trial that could not have been discovered by the exercise of reasonable diligence: [188]. "New" evidence is evidence that was available at first instance or could have been obtained in the exercise of reasonable diligence. If the evidence is new evidence, there would only be a miscarriage of justice if the applicant satisfies this court that the new evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that he/she was innocent or that his/her guilt was not established beyond reasonable doubt: [189]. Evidence about the complainant's intoxication was new evidence and fell far short of proving the applicant's innocence or raising such a doubt about guilt that the convictions cannot stand: [191], [200].
2. Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118, applied; Xie v The Queen (2021) 386 ALR 371; [2021] NSWCCA 1, applied; SC v The Queen [2023] NSWCCA 60; applied.
In respect of ground 6
1. The trial judge did not fall into error in deciding that, on the information available, the "cheat/fail" on the complainant's transcript could not substantially affect the jury's assessment of the complainant's credibility: [5]. While a finding of cheating in an academic setting could affect the assessment of a witness's credibility, there was insufficient particularity and detail of the matter upon which counsel sought to cross-examine: [10], [15].
In respect of ground 7
1. The question for an appellate court when considering whether the jury's verdict was unreasonable is whether it thinks that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, that question being one of fact which the court must decide by making its own independent assessment of the evidence: [217].
2. Dansie v The Queen 2022) 96 ALJR 728; [2022] HCA 25, applied.
3. The jury had the opportunity to consider nearly all the matters raised under this ground at trial: [242]. The Crown case was relatively strong and there was no significant possibility that an innocent man was convicted: [245].