Chia v R [2021] NSWCCA 51

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chia v R [2021] NSWCCA 51 Hearing dates: 8 March 2021 Decision date: 29 March 2021 Before: Leeming JA at [1]; Walton J at [73]; Adamson J at [74]. Decision: 1. Grant leave to appeal, including to the extent necessary leave under r 4 of the Criminal Appeal Rules. 2. Appeal allowed. 3. Quash the guilty verdicts on counts 4 and 5 of the indictment returned on 9 May 2019, and quash the aggregate sentence imposed by the District Court on 20 September 2019. 4. Order that the matter be remitted to the District Court for retrial, with the proceedings being listed for directions before the District Court at Sydney on Friday 9 April 2021 at 9.30am. Catchwords: CRIMINAL LAW - appeal against conviction - prescribed sexual offence - evidentiary ruling - Criminal Procedure Act 1986 (NSW), s 293 - appellant charged with counts of sexual intercourse without consent - appellant admitted sexual intercourse in ERISP but maintained complainant had consented - portions of appellant's answers concerning complainant's conversation about her sexual history ruled inadmissible - whether admissibility under s 293(4)(a) had been advanced at trial - whether leave to do so should be granted on appeal - whether excluded answers were evidence of complainant's sexual experience at time of alleged offence - whether excluded answers formed part of connected set of circumstances - whether probative value of excluded evidence outweighed distress, humiliation or embarrassment of complainant - whether if evidence wrong excluded, proviso applied - appeal allowed, convictions quashed and retrial ordered EVIDENCE - Criminal Procedure Act 1986 (NSW), s 293 - evidence of conversations prior to alleged prescribed sexual offence concerning complainant's conversation about her sexual history - whether exception in s 293(4)(a) applied Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 578A Criminal Appeal Act 1912 (NSW), s 5 Criminal Appeal Rules (1952 SI2), r 4 Criminal Procedure Act 1986 (NSW), ss 3, 293 Evidence Act 1995 (NSW), s 81, Dictionary Cases Cited: Bin Sulaeman v R [2013] NSWCCA 283 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 GEH v The Queen [2012] NSWCCA 150; 228 A Crim R 32 HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 JWM v R [2014] NSWCCA 248; 245 A Crim R 538 M v R (1993) 67 A Crim R 549 Nguyen v The Queen [2020] HCA 23; 94 ALJR 686 R v Burton [2013] NSWCCA 335; 237 A Crim R 238 R v Morgan (1993) 30 NSWLR 543 R v White (1989) 18 NSWLR 332 Taylor v The Queen (2009) 78 NSWLR 198; [2009] NSWCCA 180 Category: Principal judgment Parties: Jeffrey Keong Chia (Appellant) Regina (Respondent) Representation: Counsel: J Paingakulam (Appellant) B Baker (Respondent)