Xiao v R [2022] NSWCCA 95

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Xiao v R [2022] NSWCCA 95 Hearing dates: 23 February 2022 Date of orders: 23 February 2022 Decision date: 13 May 2022 Before: Price J at [1]; Harrison J at [173]; Ierace J at [174] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the conviction entered in the District Court of NSW on 18 October 2019. (4) Order a new Trial. (5) Listed for mention at the Sydney District Court in Court 3.1 at 9:30am on 11 March 2022. Catchwords: CRIME — Appeals — Appeal against conviction – manslaughter – whether trial judge failed to properly put the defence case in the summing up – requirement for a fair and balanced identification of the issues and respective cases – Rule 4.15 of the Supreme Court (Criminal Appeal) Rules – no request for further directions at trial – whether miscarriage of justice – consideration of weight to be given to jury's advantage of seeing and hearing witnesses – whether summing up raised consciousness of guilt – whether error to instruct jury as to entitlement to give less weight to exculpatory statements than admissions – Bench Book direction – whether verdict unreasonable Legislation Cited: Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: ARS v R [2011] NSWCCA 266 B v The Queen [1992] HCA 68; 175 CLR 599 Domican v The Queen [1992] HCA 13; 173 CLR 555 Edwards v R [1993] HCA 63; 178 CLR 193 Mule v The Queen [2005] HCA 49; 79 ALJR 1573 Nguyen v The Queen [2020] HCA 23; 269 CLR 299 Pell v The Queen [2020] HCA 12; 268 CLR 123 Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202 R v Murray (1987) 11 NSWLR 12 SKA v The Queen [2011] HCA 13; 243 CLR 400 The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 Trevascus v R [2021] NSWCCA 104; 104 NSWLR 571 Texts Cited: Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (2002, Judicial Commission of New South Wales) Category: Principal judgment Parties: Hong Chi Xiao (Applicant) Regina (Respondent) Representation: Counsel: T Game SC; A Francis (Applicant) G Newton (Respondent)