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) Solicitors: Bannisters Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2016/213025 Publication restriction: Orders have been made under the Children (Criminal Proceedings) Act 1987 that publication of the names of, or any matter which could identify, the deceased, the deceased's sibling and the deceased's parents is prohibited. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2019] NSWDC 797 Date of Decision: 18 October 2019 Before: Neilson DCJ File Number(s): 2016/213025 Judgment 1. PRICE J: On 18 October 2019, Hong Chi Xiao (the applicant) was found guilty of manslaughter by criminal negligence, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years' imprisonment. 2. The trial commenced before the jury on 18 September 2019, and the jurors retired to consider their verdict on 17 October 2019. The jury returned with a unanimous verdict of guilty on 18 October 2019. 3. On 13 December 2019, the applicant was sentenced to imprisonment for 10 years with a non-parole period of 7 years 6 months, commencing on 25 April 2017 and expiring on 24 April 2027. The applicant will become eligible for release to parole when the non-parole period expires on 24 October 2024. 4. The applicant appealed against his conviction and sentence. The Grounds of Appeal Against Conviction 1. The notice of appeal identifies the following grounds: Ground 1: The trial judge failed to properly put the defence case in the summing up. Ground 2: A miscarriage of justice has arisen as a consequence of the trial judge undermining the defence case by directing the jury that they were entitled to place less weight on exculpatory evidence in the [applicant's] ERISP as against the [applicant's] admissions. Ground 3: A miscarriage of justice has arisen from the trial judge's summing up inviting the jury to reason that the [applicant] was conscious of his guilt and failing to direct the jury in accordance with Edwards v The Queen [1993] HCA 63, 178 CLR 193. Ground 4: The verdict is unreasonable. The requirement for leave 1. Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applies to Grounds 1, 2 and 3 as no objection was taken at trial to the trial judge's summing up by defence counsel. 2. In ARS v R, [1] Bathurst CJ (with whom James and Johnson JJ agreed) at [148] dealt with the scope of r 4. The Chief Justice said: "… The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]." The Hearing of the Appeal on 23 February 2022 1. On the hearing of the appeal on 23 February 2022, this Court granted the applicant leave to appeal, quashed the applicant's conviction and ordered a new trial. This Court did so as it found Ground 1 established but it dismissed Ground 4. Accordingly, it is unnecessary to deal with Grounds 2 and 3 discretely, but they are considered in Ground 4. Here are my reasons for joining in the judgment. A Summary of the Trial Background 1. The deceased was at the time of his death, a 7-year-old boy who had Diabetes Mellitus Type 1 (Type 1 Diabetes). He had been diagnosed when he was 5 years old and had been under the care of Dr Neville Howard, an endocrinologist specialising in diabetes, at Westmead Children's Hospital (the hospital). The deceased's mother (LP), the deceased's father (JF) and the deceased's grandmother (GY) underwent two days training at the hospital and were taught how to manage the deceased's Type 1 Diabetes. The deceased had to be finger prick tested six times a day and receive four insulin injections daily. LP gave evidence that they were taught how certain readings required additional measures such as if the deceased's blood glucose level was below four then he would require a juice or lolly. 2. LP said they were also taught how to get help if they did not know what to do with the deceased which included a telephone number at the hospital. They were given a diabetes bag with green frogs on it which had everything in it needed to help them. This bag went everywhere with the deceased. 3. Prior to April 2015, the applicant had been travelling the world teaching "Paida Lajin Self-Healing", which espoused self-healing by techniques which included slapping, stretching and fasting. 4. Documents tendered in the Crown case included extracts in English of a book authored by the applicant in 2012, entitled "Paida and Lajin Self-Healing" (Ex MM). It is unnecessary to detail all of the relevant entries which refer to diabetes and the negative effects of medication. In a passage on p 6, the applicant stated that "[t]aking drugs or injecting insulin will damage the liver and lead to such eye problems as glaucoma and retinal detachment." On p 23, the applicant wrote that with persistent practice of Paida and Lajin "one can make significant improvements in such chronic diseases as … diabetes … normally significant improvements are gained in seven days' intensive practice (as has been repeatedly proven in our workshops worldwide), and one's condition can be expected to return to normal in a month." 5. Further references to the benefits of attending the applicant's workshop included at p 67: "The toxic side effects of drugs are greatly reduced during workshop attendance because the participants are encouraged to stop their medication. … We do not totally disapprove of medication, but it is undeniable that the toxic side effects of drugs can overweigh their healing effects. In the absence of interference from the toxic side effects of drugs, the efficacy of the self-healing methods becomes more pronounced. As is expected, the practice of Paida and Lajin with no medication has led to normalization of blood pressure and blood sugar levels, better sleep and pain relief, among other improvements." 1. Another Crown exhibit was the English translation of "Revelations on My Journey to India" (The India Report) (Ex OO) which was posted on the Paida Lajin official website on 31 March 2015 and endorsed by the applicant on 28 March 2015. In this article, the applicant recounted his third trip to India to promote the "Stretching and Slapping" self-healing method. He described the significance of the journey being "even more greater" because he was invited "by a famous Indian diabetes expert, Dr. CV Krishnaswami, chairman of TAG VHS Diabetes Research Centre" to give a keynote speech, the theme of which was "Stretching and Slapping" self-healing method. The applicant's keynote speech was followed by a three-day workshop. The applicant wrote that on the last day of the workshop Dr Krishnaswami (Dr CVK): "…excitedly summarised the amazing effects of "Stretching and Slapping". It showed good treatment effects not only on type 2 diabetes, but on both type 1 diabetes and Parkinson's disease". 1. The applicant referred to the preliminary results of the workshop: "… the "Stretching and Slapping" self-healing method … is effective for both type 1 and type 2 diabetes … Dr. CVK was very amazed at such unprecedented results after medication was stopped. … Remember: The above effects have been achieved all after stopping or reducing medication and insulin." 1. Further on in the article, the applicant wrote about his trip to Pondicherry where an 86-year-old man who put into practice Stretching and Slapping achieved great results: "His long-term diabetes is gone. Without taking any medicine or injections, his blood sugar has returned to normal." A summary of LP's evidence 1. LP gave evidence that she had travelled with Sophia Wang to Tibet in June 2014 and to Nepal and India in September of that year. Ms Wang demonstrated the slapping on LP when she had back pain and had sent information through WeChat. LP said that from WeChat she found a website about Paida Lajin which included on the website The India Report. She said she saw a photo of the applicant holding a certificate with a diabetes doctor. LP said that she read that a diabetes patient on the trip participated for five to seven days and "the result come out as quite good" and she was very happy with it. The seminar 1. The deceased, LP and JF attended the applicant's seminar on 21 April 2015 at Hurstville Civic Centre, which was the day before the commencement of the workshop. LP had been notified by Ms Wang and had decided to attend. There was evidence that the applicant made representations during the seminar such as that Paida Lajin was "hundred percent effective not only diabetes two but also diabetes one" and that it had been tried on hundreds of millions of people and "all the diabetes people stopped taking medication, insulin, and they healed." The applicant also made comments disparaging Western medicine, describing it as "poison", and advocating the reduction or withdrawal of insulin combined with the practice of Paida Lajin as a treatment or cure for diabetes. 2. During the seminar, the applicant displayed a series of slides. A copy of each slide with the commentary made by the applicant was tendered by the Crown (Ex H). The fifth slide showed the applicant meeting Dr CVK at the Chennai TAG VHS Diabetic Research Centre. 3. The commentary made by the applicant was: "This [is] the chairman of the diabetes research centre he's a very famous doctor in India. Last month I just finished the clinical workshop with this diabetes centre. All the people attended the workshop, either diabetes, with two, Parkinson's … I will just say hundred percent effective not only diabetes two but also diabetes one …" 1. Slides 60 and 61 quoted sections of The India Report. The answer by the applicant to the question "what are the result" was: "So even for diabetes one it also works. Do you know diabetes one? That means you are diabetic by genetic, you are born with this, so in your life time you rely on insulin." 1. LP said that when she and JF got to the seminar, the applicant was talking. He skipped through some slides quickly and talked about the slapping and stretching method, how it cleaned the blockage through meridians and the bad stuff came out through the resulting bruise. He also talked about the journey to India and how the patients improved. 2. When asked by the Crown why she made the decision to attend the workshop, LP replied: "By all research on the Internet, by all different cases that people show this method get recovered, by my friends telling me while the Hong Kong boy with type 1 diabetes be cured, by the India revelation, the doctor, diabetes doctor with diabetes patient, they be treated for five or seven days, they're quite a success, and I went to the seminar and I saw and see, so all give me this positive feeling." 1. Prior to attending the workshop on Day 1 (22 April 2015), the deceased was given his insulin injections as normal. This involved one daily injection of a long-acting insulin and one injection of a short-acting insulin that was required to be administered three times a day. The workshop Day One – Wednesday 1. On the first day of the workshop, LP completed an application form for the deceased. Included in the form was the following disclaimer, in English and in Mandarin: "People not advised to participate in the program: Those who cannot take care of themselves. Those with severe health problems. Hospitalized patients. Those with infectious diseases and/or skin diseases. Those with open wounds. Those with mental illness. Those had operation within last six month. Those who don't understand or believe in this method. Paida and Lajin are promoted as self-healing methods and are not meant for or substitute medical treatment. Please consult a qualified medical practitioner for any health issues." 1. LP gave evidence that she did not pay attention to this part of the form. The Crown case at trial was that the applicant's statements during the presentation and workshop, and in The India Report and the applicant's Revelations document were of a specifically medical and medical health nature which contradicted, waived and nullified the disclaimer and rendered it of no effect. 2. LP said during the break on the first day, she did a finger prick test on the deceased. She had the green frog bag with her. She pulled it out in front of everyone in the room to perform the finger prick test. When she did the finger prick, the applicant told her, "What are you doing too many finger prick for your son". She replied, "I follow with [sic] the doctor say. I say this is taught to the kids." The applicant then said, "Stop doing the insulin and you will see the result". LP later recalled during examination-in-chief that the applicant also said to her, "Think about ten needles ten times a day. You continuous [sic] hurt your son. Why are you doing this? Do you love your son? You don't have to do six times fingerprint [sic]. One or two times enough." 3. LP gave evidence that when she got home that day, she repeated the instruction to JF and GY. That instruction, the Crown contended, was repeated by the applicant on subsequent days of the workshop and no further insulin was administered. JF's evidence included that insulin was not given to the deceased after 22 April 2015 because his wife was instructed by the applicant not to give the deceased any so that he could benefit from the treatment. 4. LP received a text from Ms Wang, an assistant to the applicant, at 7:17pm, saying: "Don't give insulin injection to your little darling any more" and then "We will watch the changes in him in the seven days." LP replied at 7:39pm: "OK. Apart from giving him insulin injection in the morning before we come, I've not given him injections at lunchtime or in the evening today. I hope to see the changes on him. After we got home, I told him to properly participate in the slapping and that if he got better he would not need to have the injection in the future. He was especially happy hearing this and said that he was coming the next day too." Day Two – Thursday 1. LP said that on Day 2 she did not give the deceased any insulin. She finger prick tested the deceased in the morning before breakfast which returned a blood glucose reading of 9.9. 2. LP spoke to the applicant when she arrived at the workshop on Day 2 to speak to him about the deceased's readings. She told the applicant in front of everyone that the deceased's blood sugar level was high. LP said the applicant replied, "Stop giving his [sic] insulin. By slapping and stretching his body in new system will feeling better. Forgot [sic] about these figures. Don't worry about these figures. His body was doing the adjustment as a self-healing." 3. At the end of Day 2, the applicant said that the participants would commence fasting the next day. LP asked whether the deceased should participate in the fasting and the applicant told her that he should and that it would be good for him. That night, LP recorded the deceased's blood sugar level before dinner which was High and the ketone level was 1.6. The deceased's blood sugar level was also recorded before bed as High and the ketone level was 1.2. LP did not give the deceased any insulin on Day 2. Day Three – Friday 1. On Day 3, LP recorded the deceased's blood sugar level in the morning before breakfast which was 14.8. The deceased was not given any breakfast because it was the first day of fasting. LP said that the applicant told the participants that if they were thirsty, they could drink. By the end of the morning, the deceased was feeling tired. The participants were only provided with ginger date tea to drink. The deceased had a nap on one of the Lajin benches in the afternoon. LP recorded the deceased's blood sugar level before lunchtime, which was 10.2. LP performed a finger prick test on the deceased at dinnertime. LP said that a finger prick test was done on the deceased before bed, but it was not her writing in the logbook. LP did not give the deceased any insulin on Day 3. Day Four – Saturday 1. On Day 4, LP said that the deceased looked tired. She had to help the deceased put his clothes on. She did a finger prick test of the deceased, which recorded 3.8. As this was a low blood sugar reading, she gave the deceased a juice. JF drove LP and the deceased to the workshop because LP was concerned about driving on the road while she was fasting. The deceased vomited once during the car trip. Once they arrived at the workshop, the deceased vomited a few more times. LP saw that the deceased's vomit was yellow. She asked the applicant in front of everyone why the deceased was vomiting "yellow stuff". The applicant said, "It's all these bad things from his body. The fasting make his body react. All these bad things from his organ clean out the bad stuff from his body." 2. LP said that the deceased asked for more juice in the room and the applicant told her not to give him anymore juice, only the ginger date tea. LP told the applicant that his sugar levels were low, "below the 4", and that he needed a lolly or juice to bring his sugar level up. Again, the applicant told her to only give the deceased the ginger date tea. The applicant said that LP and the deceased could not be in the same group during the slapping and stretching activities, so they were separated. Ms Wang and Ivy Wong would help the deceased with slapping and stretching. 3. LP said she did not do any finger prick test before or after lunch. She did not give the deceased any insulin. The deceased did not have anything to eat. 4. LP said that JF collected them from the workshop at the end of the day. The deceased looked very tired and didn't have a lot of energy. The deceased had a bad sleep. He kept drinking water all night and kept vomiting. GY stayed with the deceased during the night. She showed some of the deceased's vomit to LP in the morning. LP said the deceased's vomit was white. She kept a sample to show the applicant and also took a photo of it. Day Five – Sunday 1. On Day 5, JF drove LP and the deceased to the workshop. As soon as she arrived, LP spoke to the applicant about the white sticky vomit and showed him the photos. The applicant said, "All these things from his body, the bad stuff. When he was two he had TB. He take six months medicine plus one year insulin. Medicine and the insulin are poison. All these are bad things from his body come out. The fasting make his body react. All these bad things have come out from his body." 2. LP recorded the deceased's blood glucose level as High and the ketone level as 7.8 on the Sunday morning. She had to help the deceased get dressed. She said that the deceased was not given insulin or food. The deceased only drank water on this day. He did not drink any ginger date tea. LP said that during the workshop, the deceased was very tired, he didn't have energy and didn't talk too much. He spent most of the day on the chair or on the sofa. 3. The deceased had to be carried and pushed around in a pram because he was unable to walk. LP saw her husband talk to the applicant but she could not recall what was said by the applicant. She said that her husband was worried about the deceased's health. She heard the applicant say to her husband, "Read, read. Everything is in the books". Day Six – Monday 1. On Day 6, LP recorded the deceased's blood glucose and ketone levels as High and 7.2, respectively. The deceased looked yellowish, his feet were very cold and he didn't really open his eyes. He was very weak, had no energy and she dressed him. The deceased had to be carried and pushed in a pram. He was given some rice porridge for breakfast but struggled to open his mouth. 2. The deceased had been vomiting "black stuff". LP said she showed this to the applicant who told her that it was part of the self-healing process and detox and that was all the "bad stuff" from the deceased's organ. 3. The deceased was also fed rice porridge for lunch. The deceased ate a little bit and then vomited it later. The deceased did not have any energy. He was not given insulin. After lunch, LP saw that the deceased was having a rest but did not look like he was moving. She asked the applicant's support staff to have a look at the deceased. Ms Wong and Mr Wong started slapping the deceased's arm to wake him up. LP thought that the applicant came over and started slapping the deceased's arm as well until he woke up. 4. LP discussed with the applicant what would happen on the Tuesday. LP could not get off her work shift, so she was unable to attend the workshop on Tuesday. LP said that the applicant told her that the deceased could stay with them at the hotel so that they could look after him and save them travel time. GY stayed with the deceased at the hotel. LP said that when she left at around 6:30pm, the deceased was in the pram and had his eyes closed. The deceased did not speak to her and he looked very weak. 5. The Crown asked LP whether the applicant ever said at the seminar or workshop that: somebody with Type 1 Diabetes might require insulin to prevent ketoacidosis; that the deceased might require insulin to prevent ketoacidosis; somebody with Type 1 Diabetes might still be on insulin at the end of the workshop; or, the deceased might still be on insulin at the end of the workshop – LP answered no to all questions. When asked whether she was aware of a slide in the applicant's seminar that said that during the workshop somebody with Type 1 Diabetes might require rapid acting insulin injections to prevent ketoacidosis or that they may still require insulin injections at the end of the workshop – LP replied no. 6. The deceased died on the evening of 27 April 2015 after the conclusion of the workshop for that day. He was taken to St George Hospital where he was pronounced dead. There was no issue in the trial that the cause of death was Diabetic Ketoacidosis as a consequence of withdrawal of insulin. Cross-examination 1. In cross-examination, LP agreed that the hospital had taught her, her husband and her mother that the deceased's condition was lifelong and that he could not recover from or be cured of it. The hospital told them that the deceased would not start making insulin again and he required insulin injections. LP agreed that the hospital only told them that insulin injections or pump therapy could treat the deceased. LP agreed that the hospital told her that if the ketone level was high, then the deceased would go into ketoacidosis. LP said the hospital did not tell her that if at the point of ketoacidosis, the deceased was not given insulin, he could die. LP could not remember if the hospital told her that ketoacidosis could cause the deceased to collapse or become unconscious. LP said that the hospital never told them that the deceased's insulin injections could be replaced by slapping and stretching. 2. In further cross-examination, LP agreed the applicant had never said that he was a doctor, as she stated in her police interview, but she said "in [her] mind" she thought he was a doctor because he said he had a Chinese medicine background and had treated and cured many people from different places. LP agreed that she believed that Paida Lajin could cure her son. She said that she believed this from reading the official website, the article on the India trip and the story about the Hong Kong boy. 3. LP initially planned on attending the applicant's workshop for only one day; however, she changed her mind when Ms Wang told her that it was best that she should attend all seven days. 4. Defence counsel referred to Exhibit L, which showed the finger prick record for the deceased. Exhibit L showed that on Day 1 the deceased was finger prick tested six times, on Day 2 the deceased was finger prick tested four times, on Day 3 the deceased was finger prick tested three times, on Day 4 the deceased was finger prick tested two times, and on Day 5 the deceased was finger prick tested once. Defence counsel suggested to LP that she was incorrect in her evidence that the applicant had directed her on Day 1 to cease administering insulin and to reduce finger prick testing because Exhibit L showed that she did not reduce the number of finger prick tests until Day 2. LP denied this assertion and maintained that the applicant had instructed her on Day 1. LP said that she continued to finger prick test as usual on Day 1 out of habit and because she wanted to see how the workshop was having an effect on the deceased. 5. Defence counsel put to LP that she reduced the deceased's blood sugar reading of 14.8 before breakfast on Day 3. LP replied, "I did exactly the machine tell the figure this [sic]" and said that she was a religious person and that she told the truth. Defence counsel then put to LP that she had reduced the reading of 10.2 before lunch on the same day. LP replied, "I record exactly show on the machines. I'm tell the truth. I'm lost my son. I come here to give the evidence. I lost my son. My son is dead." Defence counsel also asked LP if she "accurately" recorded the deceased's blood sugar reading before breakfast on Day 4 which was 3.8 and LP answered, "Yes." A summary of JF's evidence 1. JF said that LP knew Ms Wang from two Buddhist pilgrimages. Ms Wang sent WeChat messages to LP suggesting that the workshop would be very good for the deceased and to attend the seminar. Both LP and JF attended the seminar. There were slides but JF did not remember exactly what was put up because the slides were changed very quickly. JF said that in the presentation, the applicant showed "lots of different examples of how his treatment cured a lot of different people that had different ailments and he came across very confident." So, he and LP took away from the presentation that the treatment would be a very good way to help their son. It would be another way to treat his diabetes. 2. JF said there was no insulin given to the deceased after 22 April 2015 because they were instructed by the applicant not to give the deceased any so that he could benefit from the treatment. The instruction was relayed to him by LP. The deceased fasted on the Friday, Saturday and Sunday to get all of the toxins out of his body. 3. By the weekend, the deceased had become more tired and slower and had lost his colour. On either the Saturday or the Sunday, the deceased vomited on the way to the workshop, at the workshop and that night at home. When he picked the deceased up a lady was with him rubbing his hand. JF thought she was a workshop participant. She said, "Look, he's vomiting. It's all part of the process. You've got to continue it. He'll be okay." 4. JF gave evidence that when he collected the deceased from the workshop at the end of Sunday, he felt cold. JF said to the applicant "Look at my son, look at my son" and the applicant's reply included "…You cannot stop the process. You must see it through. You cannot stop, otherwise … [the deceased] won't receive the full benefits of the treatment." JF said, "The insulin is keeping him alive." The applicant replied, "You've got to keep doing the treatment, the process, because on the Monday it will finish, it will start going back - he'll be able to start eating again. Up until then you've got to keep going on the treatment. If you stop, you won't get the benefit of the treatment. So you've got to continue it." 5. During the seminar or workshop, JF never heard or recalled hearing the applicant say, or was aware of any slide that noted, that someone with Type 1 Diabetes, or the deceased might require rapid-acting insulin to prevent ketoacidosis, or still be on insulin at the end of the workshop. 6. In cross-examination, JF said that he got the impression that Ms Wang was pushing LP to attend the workshop because LP got upset. Ms Wang kept contacting LP through either WeChat or telephone calls and LP was getting upset and annoyed about the continuous contact. 7. At the seminar, apart from the older Indian man who had been cured of Type 1 Diabetes, there was nothing else that made him think that someone could be cured of Type 1 Diabetes. 8. In re-examination, JF was asked when he had the conversation on the Saturday or Sunday with the applicant whether the applicant mentioned anything about insulin. JF replied: ""Insulin is no - can't give him the insulin. Can't give him the insulin. You can't stop the treatment. The vomiting is to help get the bad things out of his body. You can't stop, otherwise you won't receive the benefits of the treatment." At no stage was I told that we could give him insulin - that I could give him insulin personally. I was never told that, that I could, otherwise I would have." A summary of Julie Klimek's evidence 1. Julie Klimek was a registered nurse and clinical diabetes educator at the hospital whose main role was to educate families of children newly diagnosed with types 1 and 2 diabetes as well as undertake ongoing reviews. Ms Klimek gave evidence that families would be taught that the aim for blood sugar level was between 4-10. If the blood sugar level was above 15, they needed to check ketone levels. Ms Klimek explained that ketones are an acid that are introduced when your body is insulin deficient which can cause diabetic ketoacidosis, an emergency situation where children will start to vomit, get headaches, drink a lot and urinate a lot. A ketone result above 0.5 is high and requires extra insulin, which is worked out as a percentage based on the child's daily dosage. If on another test the ketones remain high, the family are told to ring the hospital and normally they would be asked to present to emergency. 2. Ms Klimek's evidence included the training the deceased's family had been given and the day care kit which had been provided to them. She said that on a three-month review, the deceased's family were seen to be managing the deceased's diabetes well and had been very meticulous in their recordings. The deceased's parents had been taught on a daily table in the blood glucose diary for the blood glucose readings, the ketone readings if necessary, and the amount of each insulin injection. A summary of Dr Neville Howard's evidence 1. After becoming aware of the deceased's death, Dr Howard reviewed the treatment of the deceased at St George Hospital, where he was pronounced dead, as well as his diabetes record book. His opinion was that the deceased was likely in ketoacidosis from the evening of 25 April 2015. Children with diabetes deteriorate quickly without insulin, highlighting the importance of medical assistance. Although the record book showed some readings which did not follow the pattern, the ultimate pattern was one of decline over the Thursday to Monday, which was clear by the Sunday readings. If fasting, while the need for short-acting insulin would be less, there would still be a need for long-acting insulin. 2. Dr Howard said that he had read The India Report. He noted that all four participants in the trial had continued their short-acting insulin during the trial, and if they had reduced their dosage over the time period, this may have been attributable to three days of fasting. 3. In cross-examination, Dr Howard gave evidence that a high glucose reading at night followed by a normal reading before breakfast indicates either insulin was given, or the reading is unreliable. Dr Howard could not comment on when the deceased would have been beyond medical resuscitation, but he could say that the history given was consistent with a steady deterioration from diabetic ketoacidosis. Dr Howard's evidence is further summarised at [162]-[165] below. A summary of Sophia Wang's evidence 1. Ms Wang gave evidence that she met LP in 2013. She exchanged WeChat messages with LP, who told her she wanted to learn about Paida Lajin so Ms Wang directed her to the applicant's website. LP told her it was great that Paida Lajin could cure so many diseases. Ms Wang told LP about the Sydney workshop. After the seminar, they exchanged WeChat messages: "Sophia: It is not easy to have organised a workshop and invited Teacher Xiao to come, so try not to miss it. Your child's condition will be very different after the 7-day workshop. [LP]: Did Teacher Xiao say that children with Type 1 diabetes had been cured? Sophia: Yeah. [LP]: In just 7 days?" 1. Ms Wang said that she could not recall if she helped participants fill out forms. On the first day of the workshop, LP introduced her son and said he needed to check his blood sugar every day and have injections every day. Ms Wang could not remember whether the applicant was present at this time. Ms Wang could not remember why she sent the WeChat message on the evening of Day 1 saying not to give the deceased insulin anymore. Ms Wang could not remember if she heard the applicant tell LP that morning to stop giving the deceased insulin injections. Ms Wang could not recall whether she told LP by Day 1 that the deceased should stop taking his insulin during the workshop. She wanted everyone who was dependent on medication to be free of it, including the deceased. 2. Ms Wang's cross-examination included questions about a conference she had with prosecutors in October 2018 during which she denied telling LP that the deceased should stop taking insulin and she didn't think she had done so on WeChat. When asked whether this was because she believed someone would blame her for the death, she replied, "No. Up until now, I still believe that [the deceased] died of a lack of oxygen." A summary of Sharon Lin's evidence 1. Sharon Lin found out about the applicant and the method of bringing out the body's self-healing and curing many diseases. She went to the seminar and the workshop. She recalled that the applicant told LP not to give her son insulin. She recalled this was on the Saturday. When asked did she remember any other occasion when insulin was mentioned, she replied: "So in the beginning on the Thursday group discussions where [LP] mentioned that she needs to give insulin injections, that I [d]efinitely recall. Saturday [the applicant] said to stop giving insulin because that is toxic." 1. In cross-examination, Ms Lin remembered "[the applicant] actually saying, "Stop giving insulin."" She thought this was on the Saturday but accepted that could be wrong as she gave her statement two months after the workshop. 2. Early on she noticed a boy about the same age as her child. Ms Lin gave evidence that in a group discussion, the boy's mother said he had Type 1 Diabetes and she had to monitor the blood sugar levels and give him injections. On the Saturday, the mother told the applicant that the boy had been vomiting and the applicant said that was normal. The applicant also told the group that Western medicine was poison and that during doctor strikes the death rate would go down, that Western medicine cannot cure diseases, but Paida Lajin could. On Sunday, LP said that some of the deceased's readings were off the charts, and the applicant said that is a normal process, that the body was adjusting. During the workshop, the applicant did say that he was not a doctor. A summary of Ivy Wong's evidence 1. Ms Wong knew the applicant through friends. She had volunteered at various workshops including the Sydney workshop. At Sydney, she demonstrated the method and taught the participants how to do the method. She sometimes helped the boy with diabetes at the Sydney workshop with slapping and stretching. He also took part in the fasting. Over the workshop the deceased became tired and sleepy. He vomited and the applicant said it was a detox. 2. In cross-examination, Ms Wong noted that during the workshop, the applicant said that people who were receiving treatment in hospitals were not recommended to participate, that he was not from a medical profession and that participants should not take the workshop as replacing or equivalent to medical treatment. Others apart from the deceased also vomited during the workshop. A summary of the diary entries 1. Translated extracts from the applicant's diary were tendered by the Crown (Ex DD). Diary entries made by the applicant included: Day 1: "A mother took her 6 years old son, who has Type 1 diabetics [sic]". Day 2: "The 6 years old boy was basically following all the adults for the whole day activities. His mother told me he stopped injecting insulin, this morning his blood sugar was down , 9 point or something. He had blood test 6 times a day; insulin injection for 4 times, 10 needles a day, not mention the pain and psychological pressures. I told his mother he should start fasting from tomorrow, be persistent, suggested her check his blood sugar level twice a day, truly not necessary to make the child suffer like this. His mother agreed." Day 5: "[The deceased's] reaction was stronger, he was weak, vomiting, his mother said from last night, he didn't sleep, he kept on drinking water, and then threw up, he threw out vomits with white, black and yellow colours, even today he was still vomiting. Checked his blood sugar level and … the reading went up so high that they couldn't see the reading, this morning, … down to normal. I repeatedly told her not to worry about the fluctuation of readings for blood sugar levels and other readings, so that was why they held on till today. But her husband is a foreigner, was very worried. But eventually they held on. In the afternoon when he came in, I encouraged them be calm, changes in readings were normal, which meant he was healing himself, the healing process was taking place." A summary of the applicant's police interview (ERISP) 1. The applicant was interviewed by police the day after the deceased's death. The interview was played to the jury on 8 October 2019 (Ex NN). During that interview, the applicant told police he did not instruct LP to withdraw insulin on Day 1 or at all and believed it was LP's idea to "get rid of insulin". He said that he and LP never talked in detail about the deceased's medication. When asked whether the deceased was ever told during the workshop to stop his medication, the applicant replied, "[t]hat we cannot do we can only say this is a natural therapy. For the … medicine is you have to consult your doctor or you have to do it at your own judgement." 2. When he was told that the deceased was vomiting, he told them that was normal. He did not recommend any medicine or medical treatment because he was not a doctor; it was up to the parent's discretion. 3. On the first day, LP told the applicant she had to test the deceased's blood sugar many times a day. She told the applicant the deceased's blood sugar levels were up and down. When asked whether LP came to him on 26 April 2015 to say the deceased's blood sugar levels were very high and whether he told her to just leave it and see, the applicant said he told her to give him some food or drink if he needed it; he could not give her medical advice as he was not a doctor. He never told LP his workshop could cure the deceased's diabetes, although it did happen to some people and in the India workshop. 4. The applicant said he never treated people. He was not a doctor. He only taught a way to enhance wellbeing. 5. Another exhibit that was tendered were extracts of the video file of the workshop (Ex X). The extracts included "speeches" made by the applicant and by LP. Close of the Crown case 1. At the close of the Crown case, defence counsel tendered the conference notes of Ms Wang's meeting with prosecutors in October 2018. The defence tendered six other exhibits during the trial. The applicant did not give evidence. The Crown's closing address 1. It was the Crown case that the applicant was guilty of manslaughter on the basis of his criminal negligence by instructing LP on the first day of the workshop to stop the administration of insulin to her son for the duration of the workshop. 2. In his closing address to the jury, which occupied almost two and a half days, the Crown described LP as an "essential witness" and a "most important witness". He submitted that although the direction was given to LP by the applicant to stop taking insulin, it was directed to anyone who was looking after the deceased. 3. The Crown drew the jury's attention to the Revelations document which was written by the applicant about three weeks before the seminar and made particular reference to the passage which included that the stretching and slapping self-healing method was effective "for both type 1 and type 2 diabetes". The Crown pointed out that no mention was made that all of the Type 1 Diabetes participants required rapid acting insulin during the workshop and remained on insulin at the conclusion. 4. The Crown assiduously took the jury through the evidence relating to each day of the workshop. He pointed out LP told JF and GY on the night of the first day that the applicant wanted them to stop insulin. As to Ms Wang's text at 7:17pm, the Crown submitted that the text could not be the cause for LP to stop giving her son the insulin as LP's response at 7:39pm showed that she had already stopped giving the insulin and suggested she was trying to comply with the instructions for completing the workshop. 5. As to the glucose readings entered in the logbook, the Crown argued that the 3.8 blood glucose reading on the Saturday which was a very low figure could have been an innocent mistake. 6. The Crown articulated the Crown's case in respect of each of the essential elements of the offence (which was repeated by the trial judge in the summing up – see [106]-[112] below). Defence counsel's closing address 1. In her closing address, which occupied almost one and a half days, defence counsel identified seven reasons why the jury should exercise reasonable doubt as to the evidence of LP. Defence counsel submitted that LP was an unimpressive witness and lacked credibility and reliability which included what were described as "false entries" made in the logbook. Another reason was that LP's evidence was inconsistent with the contemporaneous records in the logbook and the applicant's diary. Defence counsel referred to the logbook showing that on Day 1, all usual finger pricks were done which suggested that LP had not been told to reduce finger pricks on that day. Defence counsel put to the jury that the logbook showed that on Day 2, finger pricks were reduced after breakfast, which supported the conclusion that the conversation about finger pricks happened on Day 2 and not Day 1. Defence counsel referred to the applicant's diary notes from Day 2 that the deceased's previous medical treatment was painful and he told LP to commence fasting from the next day and his blood levels should be checked twice a day from now on. Defence counsel further argued that there was no support from anyone as to the applicant giving LP the instruction. Furthermore, the evidence did not support LP's evidence that she relayed the instruction to JF and GY. Defence counsel argued that the fifth, sixth and seventh reasons for LP's unreliability, concerned the lack of support from Ms Lin's evidence, the denials made during the applicant's record of interview, the influence of Ms Wang and LP's own research into Paida Lajin. 2. In relation to the text sent by Ms Wang to LP on the night of Day 1, defence counsel said that it was a leap to suggest that the message should be attributed to the applicant. 3. Defence counsel then addressed the jury on causation and duty of care. It was the applicant's case that the deceased's carers, LP, JF and GY, had been provided with resources, materials and facilities from the hospital to assist with monitoring and managing his condition. Defence counsel said this was evident by the "green frog bag" that travelled everywhere with the deceased. The green frog bag carried everything necessary to test the deceased's blood glucose level, give him insulin to deal with fluctuating blood glucose levels and record the levels at each test. The deceased's carers knew the purpose of each item and how to use them. Moreover, a policy of the hospital was to assess the understanding and ability of family members to cope with caring for a person with diabetes. Dr Howard gave evidence that he had no concerns about the deceased's parents, their understanding and their ability to look after the deceased's diabetes at home. Ms Klimek also gave evidence that the deceased's treatment was going "really well", which was evident by one objective measure of his long-term blood glucose results always being very good. 4. It was the applicant's case that, conversely, the applicant's knowledge of Type 1 Diabetes was rudimentary. The applicant had not received the same training as the deceased's carers, nor did he have the same knowledge of the deceased's illness or access to the same resources and materials. Defence counsel argued that the deceased's carers carried the duty of care for the deceased and went against the advice they had received from the hospital by not intervening when they knew the deceased's health was deteriorating. 5. Defence counsel argued that the progression of the deceased's deterioration during the workshop neither proved causation nor criminal negligence and made three points, being: the deceased's appearance each day; the information given or not given to the applicant and the misinformation provided to him; and question marks over the deceased's recoverability. 6. As to "recoverability" or "survivability" of the deceased. Defence counsel said: "…the Crown hasn't proved the causal significance of the last two days of [the deceased's] life, that is 26 through to 27 April 2015. What I mean by that is that by the - when we get to Dr Howard's opinion about these two days, it will become apparent that anything done, not done, seen, not seen, said or not said by [the applicant] or for that matter by anyone else on those two days had no bearing on [the applicant's] liability because in a causal sense the Crown hasn't proved that if anything was done differently on those days that [the deceased] would have survived. So it has no - what I'm putting is that the Crown hasn't proved to you beyond reasonable doubt any causal significance to those two days." 1. Defence counsel put to the jury that the Crown's claim that the applicant had a duty of care was not made out. Defence counsel said the applicant did make publications or statements on Paida Lajin as a self-healing method. However, Defence counsel said that the applicant spoke with "obvious … flourish and hyperbole", such as saying that his method cured "millions of people". Defence counsel said that this assertion was made generally and not specific to diabetes. In reference to the disclaimer on the application form, defence counsel submitted that it was not relevant that LP claimed she did not read the disclaimer. LP also gave evidence that the applicant did not mention the disclaimer during the workshop. However, defence counsel said the evidence of Ms Wang and Ms Wong contradicted this as they said that "[the applicant] did say things to that effect during the Sydney workshop". Ground One: The trial judge failed to properly put the defence case in the summing up Applicant's Submissions 1. The applicant submitted that the trial judge's summing up did not enable the jury to comprehend and understand what the defence case was in respect of, for example, causation or gross criminal negligence. 2. The applicant contended that the trial judge's summing up mischaracterised the defence case by his Honour inaccurately simplifying the applicant's case as relying "in essence" upon the applicant's denials in the record of interview. 3. Another argument was that the trial judge omitted any reference to the defence's alternative explanation for LP withdrawing the deceased's insulin including on account of the influence of Ms Wang and LP's misunderstanding of her own research that Paida Lajin could cure Type 1 Diabetes. Further, there was no reference to the significance of the false blood results which were provided to the applicant throughout the workshop. Moreover, there was no direction to the jury about the significant challenges to the deceased's parents' credibility, upon whose evidence the Crown case depended. 4. The applicant submitted that, in conclusion, the summing up did not exhibit "judicial balance" and it deprived the jury "of an adequate opportunity of understanding and giving effect to the [applicant's] defence and the matters relied upon in support of the defence". [2] Crown's Submissions 1. The Crown submitted that the trial judge gave a direction on causation in accordance with the Criminal Trial Courts Bench Book (The Bench Book) and the defence counsel's request for such a direction. 2. The Crown pointed out that the trial judge also did not refer to any particular submission made by the trial Crown in the closing address in support of the Crown case. 3. The Crown argued that the trial judge's confinement of the defence case to the applicant's denial of ever instructing LP to withdraw insulin did not constitute a miscarriage of justice. The Crown submitted that the trial judge's summing up immediately followed the defence counsel's closing address and the issues were not complex. A further contention was that it would have been difficult for the trial judge to summarise the arguments put forward by defence counsel. Consideration 1. The issue that this ground of appeal raises is one of fairness. In Domican v The Queen, [3] the plurality (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said at p 561: "…Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused." (Footnotes omitted.) 1. Recently in Trevascus v R, [4] Bellew J (with whom Hoeben CJ at CL and Hidden AJ agreed) helpfully summarised the principles concerning the adequacy of a summing up. His Honour said: "79 Accepting that s 161 of the Criminal Procedure Act 1986 (NSW) (CPA) alleviated the need for the trial judge to summarise the evidence, one of the factors which is of paramount significance in assessing a summing-up is to determine whether the defence has been fairly put, thus allowing the jury to properly consider the issues raised on the accused's behalf. If, when the summing-up is viewed as a whole, the jury has not been given the opportunity fairly to consider the defence case, then there has been a miscarriage of justice. The principles which centre upon the obligation of a trial judge in that regard include the following. 80 Firstly, the fundamental task of the trial judge is to ensure a fair trial which will involve not only instructing the jury about the law, but which will extend to identifying the issues, relating the law to those issues, and assisting the jury to understand how it is that the accused may be guilty of the offence charged in the indictment. It is the case which the accused makes that the jury must be given to understand, and it is not sufficient for the trial judge to simply say to the jury that they should give consideration to the arguments which have been put by counsel. 81 Secondly, fairness and balance will ordinarily require that the respective cases for the prosecution and the accused be accurately and fairly put to the jury, although that requirement does not oblige the trial judge to put to the jury every argument put forward by counsel for the accused. 82 Thirdly, the adequacy of a summing-up will depend, at least in part, upon the circumstances of the particular case. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way. 83 Fourthly, the need for, and extent of, any exploration of the evidence and the issues is to be assessed in the context of the trial, its length, its complexity and the way in which it has been conducted. Where the summing-up in a short trial has followed hard on the heels of a defence address, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in the closing addresses. To so require would be to credit the jury with little in the way of intelligence and common sense. However, an exercise of judgment is always required on the part of the trial judge to frame the summing-up in a way that is helpful to the jury. To suggest that in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, and the relevant evidence, would be to go too far. Counsel should be expected to contribute in this regard and to disclose whether they seek more by way of summary of the evidence and of the submissions than the judge proposes. 84 Fifthly, whilst s 161 of the CPA relieves the trial judge of the positive obligation to summarise the evidence if the circumstances of the particular trial render that unnecessary, it does not relieve the trial judge of the obligation to put the case of the accused to the jury, and instruct the jury about how the law applies to the case. The way in which the accused's case is put to the jury must make it clear that the onus of proof remains on the prosecution, but the case must still be put." (Footnotes omitted.) 1. Prior to the commencement of closing addresses and the summing up, the trial judge had various discussions with counsel concerning the elements of manslaughter by criminal negligence which resulted in the production of a written document being provided to the jury during the summing up. 2. Both in the written document and in the oral directions, his Honour gave careful instructions to the jury as to the six essential legal elements of the charge which the Crown was required to prove beyond reasonable doubt. The applicant does not complain about his Honour's directions as to the law. 3. Earlier in the summing up, the trial judge said to the jury: "Ladies and gentlemen, part of the role of a Judge in a trial that goes for a relatively long time, is to sum up the evidence given in the case and the arguments of the parties. However, you have heard fairly lengthy addresses, both from Mr Crown and [the applicant's trial counsel], in which they recited the evidence they wish you to act upon and put their arguments forward to you. To avoid unnecessarily [sic] prolonging of this case, I do not propose to do so. However, if you wish I can have provided to you a copy of the addresses if you want to read them in the jury room. Of course, when you are deliberating in the jury room, it is necessary for you to consider all the evidence and not only the evidence to which you have been referred by counsel or to which I may refer in this summing up." (Emphasis added.) 1. In addition to the instructions about the law, the trial judge summarised the Crown case in respect of each element of the offence that was in contention. His Honour's oral summary followed the summary in the written document. 2. The first element was the death of the deceased which was not in issue. 3. As to the second element, which was "the [applicant] owed a duty of care to the deceased," his Honour said: "The Crown alleges that on and after 21 April 2015, the accused held himself out as firstly, the holder of specialist knowledge and skill in Paida Lajin, a self-healing method for treating diseases and illnesses based on his study, training and experience. He also held himself out as a teacher of Paida Lajin as an alternative to conventional medicine. Thirdly, he held himself out as a person who conducted workshops at which he taught and gave instruction and advice in the use of the methods of Paida Lajin and that he supervised the administration of those methods at his workshops. Fourthly, the accused said that his methods of attending and participating in a workshop, following his instructions and stopping medication, including the case of diabetes mellitus type 1, cessation of the administration of insulin, would cure the relevant condition, in the case of diabetes mellitus type 1, that condition leading to the end of the need to administer insulin, and the accused accepted the deceased into his workshop, commencing on 22 April 2015 to treat him for diabetes mellitus type 1, knowing that up until that time he had been treated by the administration of insulin." 1. As to the third element, which was "the [applicant] committed an act," his Honour said: "The next thing that you have to find is that the accused committed an act. The act alleged by the Crown is the action of the accused in telling or advising or directing the deceased's carer, his mother [LP], to stop insulin during the pre-luncheon break on Wednesday 22 April 2015, the first day of the workshop. The Crown contends that what the accused said was directed to all those who cared for the deceased, that is, the mother, the father and the grandmother. You must be satisfied of the occurrence of that act beyond reasonable doubt. As I mentioned to you earlier, the law punishes not beliefs, but the law punishes acts. The act here relied upon is the act of telling or directing or advising [LP] to stop the administration of insulin during the workshop. The Crown also contends, as you have heard from Mr Crown, that this statement or advice or direction was repeated on subsequent days of the workshop. Again, to be satisfied of that you have to look at the evidence, in particular of [LP], and see whether it satisfies you of that initial act or advice, and that the statement was repeated from time to time during the workshop." 1. As to the fourth element, which was "the act of the [applicant] was a substantial cause or accelerated the deceased's death," his Honour said: "The Crown says that the accused caused the death of the deceased by giving the direction to [LP] to stop the administration of insulin during the workshop. The [applicant] says that you would not be satisfied beyond reasonable doubt about that because of the argument which has been presented to you this morning and this afternoon by [the applicant's trial counsel]. Whether the [applicant's] act caused the death of the deceased is a question of fact for you to decide. The Crown has the onus of proving beyond reasonable doubt that the [applicant's] act caused the deceased's death." (Emphasis added.) 1. As to the fifth element, which was "the [applicant's] act was negligent in that he breached the duty of care which he owed to the deceased," his Honour said: "You have to bear in mind different considerations. A reasonable person is a person who would act on all the knowledge that he had and act upon everything he knew about the condition of diabetes mellitus type 1. Here is I understand the Crown case, the Crown is alleging that the [applicant] did not tell the carers of the deceased that in the India workshop conducted in the month before the workshop at Hurstville, that the persons suffering from diabetes mellitus type 1, needed to have injections of insulin during the fasting period because they developed ketoacidosis. The [applicant] did not tell the carers of the deceased that at the end of the India workshop, those suffering from diabetes mellitus type 1 still required the administration of insulin. If you accept that the [applicant] knew those things, then you can accept that a reasonable person in the [applicant's] position would know those things and then you must say what would a reasonable person knowing those things do in a situation where he was confronted by the parents of the boy, bringing him to the workshop to be treated for diabetes mellitus type 1. Ladies and gentlemen, you have to put this reasonable person into the [applicant's] shoes at the time of the workshop and attribute to that reasonable person the [applicant's] knowledge of the circumstances at the time the [applicant] did the act alleged by the Crown." 1. After instructing the jury that they were not concerned with the applicant's personal beliefs about the correctness of his conduct, but "with what a reasonable person in the [applicant's] position would have thought was appropriate and necessary", his Honour went on to say: "43 There are some considerations which I can very shortly state and which may assist you in making your determination on this element, if you reach this element. The [applicant] was born on 5 February 1963. At the time of the workshop he was 52 years old. He held a degree of Master of Business Administration from a business school in the United States of America. As you've been told numerous times, he is fluent in both English and Mandarin and he said that he's been speaking English in his record of interview for 20 years. At about the age of 40, the [applicant] left the finance industry and started a journey searching for different healers. Initially, he learnt acupressure and then acupuncture. He sought something simpler and learned about stretching or Lajin. That led to his finding both stretching, Lajin and slapping, Paida. 44 As you've been told, he has published not only one book both in English and in Chinese about Paida Lajin, but other books. He has travelled extensively teaching Paida Lajin. Merely from looking at exhibits G and H, the seminar presentation, we know that he's been teaching at Pondicherry, Chennai and Mysore in India. In Vancouver, Canada. In Beijing, Macau, Shenzhen and Hong Kong in China. Also, in Taiwan and Tibet. That has held a workshop in New Zealand, and another in Melbourne. We have also heard other workshops in Australia. That he's had workshops in Macau and in Singapore in 2011 and 2013. He's also conducted seminars in London and in the United States of America, in San Francisco and Los Angeles and when you go to other documentary evidence you'll see that there's a number of other places he's carried out workshops in the United States of America and you'll probably find reference to many other places. In my note here, I'll also mention there is also a reference in exhibits G and H, to Seattle in the USA. According to what he told the police, the [applicant] had been teaching Paida Lajin for about 10 years. That's in question 62 and the answer to it." 1. As to the sixth element of the offence "the [applicant's] act amounted to criminal negligence," the trial judge did not refer to any matters of fact. 2. Other than the reference to "the argument which has been presented to you" by the applicant's counsel which is quoted at [109] above, the only reference to the applicant's case to the jury was as follows: "54 Ladies and gentleman, the defence relies in essence upon the electronically recorded interview that the [applicant] gave to the police on the day following [the deceased's] death. The statements made by the [applicant] in his interview with the police, are not statements made under oath or a solemn affirmation to tell the truth, the whole truth and nothing but the truth. In the interview, the [applicant] admitted many things. Most of those things are not controversial. Anything admitted by the [applicant] against his own interest can be taken by you as reliable, merely from the fact that people do not admit to things that they do not do. 55 However, the [applicant] also made a number of statements distancing himself from the crime alleged. For example, denying that he told [LP] to stop administering insulin to the deceased. These are what we call exculpatory statements. You are entitled to give less weight to the exculpatory statements than you give to the admissions. The weight which you give to each part of what the [applicant] said at his interview, should be determined by you in light of all the evidence given in the trial. You might like to consider two things. Firstly, although the [applicant] was interviewed by two police officers, he was not cross-examined in front of you by Mr Crown. Secondly, the interview was given on 28 April 2015, the day after the deceased's death, whereas this trial takes place in October 2019, four years and five months later where his recollection of events would not be as good as it was on 28 April 2015." (Emphasis added.) 1. The written instructions provided to the jury made no mention at all of the applicant's case. 2. In my respectful opinion, the trial judge's instruction to the jury that the defence "relied in essence upon the electronically recorded interview" was unfair as it had the potential of diverting the jury's attention away from significant arguments advanced by defence counsel in her closing address. 3. Defence counsel had mounted a strong attack on the credibility and reliability of LP whose evidence was fundamental to the Crown case. The applicant's answers in the record of interview was only one of seven reasons identified by defence counsel for the jury to have a reasonable doubt. 4. Although defence counsel had not asked the trial judge for a "Murray direction", [5] his Honour should at least have reminded the jury of the importance of LP's evidence and of the respective arguments of the parties as to the honesty and reliability of her evidence. Defence counsel had also challenged the Crown case on the duty of care and causation. 5. An issue of significance in the applicant's case was the differing levels of the deceased's blood glucose readings for the days of the workshop about which LP and Dr Howard had given evidence. To enable the jury to properly understand the applicant's case, a concise summary of this evidence and a clear statement as to how the evidence related to the elements of the offence and the factual questions to be decided was required in the summing up. 6. This was not a simple case. The trial raised issues of duty of care, causation, breach of duty and criminal negligence. The trial judge's summing up reminded the jury of the Crown case in respect of each of the elements of the offence but little was said about the applicant's case. True it is that the trial judge did not recount the arguments advanced by the Crown in his lengthy closing address as to why the jury should find the offence established but this did not relieve his Honour of the obligation to fairly put to the jury the applicant's case. 7. What was required was a fair and balanced identification of the issues and the respective cases for the Crown and the applicant. In my respectful opinion, this was not a difficult task for the trial judge, notwithstanding the length of the closing addresses. 8. His Honour's instruction to the jury that they be provided with "a copy of the addresses if you want to read them in the jury room" was unhelpful, to say the least, as closing addresses occupied about four days and almost two hundred pages of transcript. 9. Defence counsel did not complain about the summing up and it is surprising she did not do so. Her failure to raise the issue cannot be explained by the hope of gaining some tactical advantage. Furthermore, I am not persuaded that the unexplained failure to take the point at the trial is a reliable indicator of the fairness and the adequacy of the summing up as it fell far short of the jury having a fair opportunity to properly consider the applicant's case. In my view, there has been a miscarriage of justice such that the applicant has lost a fair chance of acquittal. Ground Four: The verdict is unreasonable Applicant's Submissions 1. The principal submission made on the applicant's behalf was that the verdict was unsafe as there was insufficient evidence to support LP's testimony that she was instructed to withdraw insulin on the first day of the workshop by the applicant. The applicant pointed out that the Crown's identification of the applicant's negligent act causing death specified the Day 1 instruction. 2. The applicant referred to the Paida Lajin promotional material, and to Ms Wang engendering in LP a false hope as to the likely benefits of withdrawal of insulin and to the likelihood of LP relying upon information of this kind in deciding to withdraw insulin. 3. Another argument focused on intervening acts breaking any chain of causation. The applicant referred to the inaccurate recording of the deceased's blood glucose readings and LP's failure to act in the face of the true state of affairs which was submitted to constitute a formidable obstacle to proof that the alleged instruction by the applicant was the cause of death. The applicant submitted the evidence demonstrated that he understood the deceased's blood glucose levels were being monitored, and he reasonably expected that these levels were being accurately recorded and, if at potentially dangerous levels, his carers would intervene and comply with their medical advice. The applicant referred to JF's contradictory evidence as to whether he advised JF not to give the deceased insulin and pointed to the following passage in Ex X where LP said at the workshop on 26 April 2015 after referring to the deceased's symptoms: "… And there is another point I forgot to mention: when (we) I tested his blood last night his blood sugar was 26.8, but his ketone, ketone was too high, that it could not be measured, it was high. When (we) tested his blood sugar the following morning, his blood sugar was too high to be numerically revealed, but his ketone reading had dropped, dropped to 7.8. Therefore, this means, this shows us that maybe he is going through the self-adjustments. So his condition this afternoon is much better than in the morning. There has been a significant improvement." 1. The applicant pointed out an aspect of his case was that he was misled as to the true state of the deceased's deteriorating condition which was relevant to an evaluation of the cause of death. There was the real possibility, the applicant contended, that LP was intent on the withdrawal of insulin despite what must have been evident to her, namely the deceased's dangerous blood glucose readings, which she failed to disclose to the applicant or the deceased's doctors. Furthermore, the applicant argued that if LP was determined for her own reasons to withdraw insulin, this had a bearing on whether the applicant's conduct amounted to criminal negligence. 2. Another submission was that there remained a reasonable doubt the applicant assumed responsibility for the deceased's medical needs in substitution for oversight by the deceased's carers who were informed by medical advice. Crown's Submissions 1. The Crown submitted that there was ample evidence to prove the applicant's guilt. The Crown argued that LP's evidence was cogent and the jury had the advantage of assessing her demeanour over a number of days when she gave evidence. Specifically, it was open to the jury to accept LP's evidence that on the morning of Day 1, the applicant told her to stop giving the deceased insulin and that she "would see the result". The Crown submitted that evidence was supported by other evidence in the Crown case. 2. The Crown contended that it was open to the jury to accept the evidence of LP (and other witnesses) that the applicant repeated the instruction on a number of subsequent occasions during the workshop. 3. The Crown argued that the applicant was neither misled nor was there a break in the chain of causation. Legal Principle 1. The principles on which a Court will set aside a verdict as unreasonable were set out by the plurality (French CJ, Gummow and Keifel JJ) in SKA v The Queen [6] as follows: "The task of the Court of Criminal Appeal 11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."" (Footnotes omitted.) 1. In The Queen v Baden-Clay, [7] the High Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) emphasised the regard that must be had to the constitutional function of the jury as the tribunal of fact: "The whole of the evidence The role of the jury 65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact". Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. 66 With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."" (Footnotes omitted.) 1. More recently in Pell v The Queen, [8] the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) made the following observations concerning the jury's advantage in seeing and hearing witnesses at [38]-[39]: "38 It should be understood that when the joint reasons in M v The Queen spoke of the jury's "advantage in seeing and hearing the witnesses" as being "capable of resolving a doubt experienced by a court of criminal appeal" as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or "constitutional" demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible. 39 The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt." (Footnotes omitted.) 1. The High Court went on to say: "43 At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself: "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". 44 The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms: "But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt." (Footnote omitted; emphasis in original.) 45 As their Honours observed, to say that a jury "must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M." (Footnotes omitted.) Grounds 1, 2 and 3 and the Weight to be Given to the Jury's Advantage 1. The task of this Court is to consider the whole of the evidence. The applicant's submissions as to an unreasonable verdict focus on LP's evidence which is fundamental to the Crown case against him. 2. The jury had the opportunity of seeing and hearing LP in the witness box over almost five and a half days which included about four days in cross-examination. The applicant submitted that the weight to be given to the jury's advantage of seeing LP in evidence should be diminished because of the errors in the summing up which are the subject of the applicant's complaints in Grounds 1, 2 and 3. The applicant cited Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [9] where R A Hulme J at [278]-[279] observed that misdirection to a jury or to a finding that there has been a miscarriage of justice may result in the weight to be attributed to the jury's verdict being relatively slight and in some circumstances being excluded altogether. 3. In order to consider this submission, it is necessary to consider Grounds 2 and 3 which arise from what was said by the trial judge to the jury in the passages quoted at [113] above. 4. In Ground 3, the applicant contended that by instructing the jury that the applicant also made a number of statements "distancing himself from the crime alleged", his Honour raised a consciousness of guilt on the applicant's part which was unfair and no curative directions were made of an Edwards [10] kind. 5. In my view, there is no merit in this ground of appeal. His Honour was merely reminding the jury that the applicant in his ERISP had made statements which distanced himself from responsibility for the death of the deceased and provided the example of the applicant's denial that he told LP to stop administering insulin to the deceased. His Honour had earlier directed the jury that the applicant "is entitled to rely upon [the account given in the recorded interview with police] and asks you to take it into consideration with the other evidence called by the Crown. The [applicant] is not required to prove that this account is true. The Crown in discharging its obligation to prove the [applicant's] guilt, must satisfy you that it is a version of events that could not reasonably be true." 6. His Honour did not invite the jury to reason that the applicant was conscious of his guilt and an Edwards direction was not required. Ground 3 should be dismissed. 7. Ground 2 directs attention to the trial judge's instruction to the jury that they were "entitled to give less weight to the exculpatory statements than you give to the admissions" made by the applicant. The applicant submitted that these instructions were unnecessary and undermined his case. However, the trial judge went on to say, "The weight which you give to each part of what the [applicant] said at his interview, should be determined by you in light of all the evidence given in the trial." 8. What his Honour said was consistent with The Bench Book under the heading "Admissions to Police" which contains the following passage: "A judge is entitled to direct the jury that evidence of pre-trial exculpatory statements of an accused could be given less weight than inculpatory admissions in the absence of testimony from the accused at trial but it is for the jury to determine the weight to be given to parts of the evidence: Mule v The Queen (2005) 79 ALJR 1573 at [21]ff." [11] 1. The applicant argued that this "entitlement" is not found in Mule v The Queen ('Mule') [12] and The Bench Book is incorrect. 2. The Crown, on the other hand, referred to the following passages in Mule where the High Court of Australia (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ) said at [22]: "… As an observation on the facts, in the circumstances of this case, it was not inappropriate to point out that, while the admissions of possession were accepted by both sides at the trial to be true, the assertions about purpose were in dispute, that they were not supported by any sworn testimony and that they were self-serving. It would also not have been inappropriate to point out that the jury might think them to be of less weight than the admissions." 1. Nevertheless, reliance was placed by the applicant on the passage that followed in Mule at [23]: "As has been noted, many cases involving evidence of out of court "mixed" statements by an accused person are more complex than the present. In R v Cox, Thomas J rightly cautioned against inappropriate generalisations concerning the difference between inculpatory and exculpatory parts of a statement: a difference that in some cases (not including the present) might be difficult to discern." (Footnotes omitted.) 1. The applicant also pointed to the observations of Edelman J (at [59]) in Nguyen v The Queen ('Nguyen') [13] in respect of "mixed statements" footnoting Mule at [23]: "…And, contrary to the approach in England, which countenances a usual direction by the trial judge that "incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight", such a general statement has been held in Australia to be an "unwise" direction and an "undesirable" one to the extent that it expounds traditional reasons why admissions against interest are commonly regarded as reliable evidence." (Footnotes omitted.) 1. However, in Nguyen, the plurality (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ) also footnoting Mule at [25] said at [24]: "Howsoever mixed statements come to be admitted into evidence they are invariably subject to a direction to the jury that they may give less weight to exculpatory assertions than to admissions and that it is for them to decide what weight is to be given to a particular statement. The rationale for the direction is that exculpatory statements are not statements made against interest, are not made on oath and are not subject to cross-examination." (Footnotes omitted.) 1. It is unnecessary to resolve the debate about the correctness of The Bench Book. In my view, it might be prudent for the authors to add that caution should be exercised before instructing the jury in a way which suggests that inculpatory statements should be given more weight than exculpatory statements, particularly when the out-of-court statements may be mixed and complex. 2. This was not the case in the applicant's ERISP as his statements of denial were clear and uncomplicated. In my view, his Honour did not err in giving the direction and Ground 2 should be dismissed. 3. The applicant's success is confined to Ground 1. In these circumstances, the weight to be attributed to the jury's advantage of seeing and hearing LP's evidence is not substantially reduced. 4. Notwithstanding the jury's assessment that the evidence of LP was honest and reliable, the question remains whether there are inconsistencies, discrepancies and inadequacies upon an examination of the record which leads to the conclusion that the jury, acting rationally, ought to have entertained a reasonable doubt as to the applicant's guilt. Further Consideration 1. There is no merit in the applicant's contention that there was insufficient evidence to support LP's testimony that she was instructed to withdraw insulin by him on Day 1 of the workshop. JF gave evidence that no insulin was given to the deceased after 22 April 2015 because of the applicant's instruction, which was relayed to him by LP. Furthermore, there was LP's reply to Ms Wang's text message at 7:39pm on Day 1, which included the following: "OK. Apart from giving him insulin injection in the morning before we come, I've not given him injections at lunchtime or in the evening today." 1. It was also open to the jury to find that the applicant's diary entry on Day 2, "His mother told me he stopped injecting insulin," supported LP's testimony that she followed the applicant's instruction. 2. There was ample evidence supporting LP's testimony that the applicant repeated the instruction on a number of subsequent occasions during the workshop. In addition to JF's evidence that the applicant said, "can't give him the insulin" and the applicant's diary entry on Day 5 "But her husband is a foreigner, was very worried. But eventually they held on", Ms Lin recalled the applicant saying, "to stop giving insulin because that is toxic". 3. As to the applicant's argument of insufficient evidence to establish he had assumed responsibility for the deceased's medical needs, the jury did not need to look further than the evidence of LP and JF of their conversations with the applicant during the workshop. 4. Without repeating the evidence about the applicant's instruction to stop insulin on Day 1 and subsequent instructions, it is sufficient to refer to the following conversations during the workshop. 5. LP's evidence was that on Day 2, when she told the applicant that the deceased's blood glucose level was high, he replied "Stop giving his [sic] insulin. By slapping and stretching his body in new system will feeling better. Forgot [sic] about these figures. Don't worry about these figures. His body was doing the adjustment as a self-healing." 6. On Day 4, LP asked the applicant why the deceased was vomiting "yellow stuff". The applicant replied "It's all these bad things from his body. The fasting make his body react. All these bad things from his organ clean out the bad stuff from his body." 7. When she showed the applicant the "black stuff" that the deceased had been vomiting, the applicant told her that it was part of the self-healing process and detox and that was all the "bad stuff" from the deceased's organs. 8. JF's evidence included the conversation he had with the applicant on Day 5 when he was told that he could not "stop the process" and he "must see it through", that he had "to keep going on the treatment" and if he stopped, he "won't get the benefit of the treatment". 9. The applicant raised the differing levels of the deceased's blood glucose readings recorded for the days of the workshop by LP in Annexure A, Ex L. The applicant argued that he acted on the advice given by the deceased's parents about the blood glucose readings and contended that LP could have falsified the blood glucose readings as she may have been motivated by a desire to cure her son of Type 1 Diabetes and his dependence on insulin. 10. In cross-examination, Dr Howard said that you would not expect for the blood glucose levels in a child who is fasting to be "jumping up and down". He agreed that the blood glucose levels would be generally rising. 11. Dr Howard opined that an explanation for the deceased's blood glucose level dropping overnight from Day 1 to Day 2 would be that he received a long-acting insulin in the morning of Day 1. There was another drop in the recorded blood glucose level overnight from Day 2 to Day 3. The record shows, inter alia, a "before dinner" entry of "Hi 1.6" and a "before supper or bed" entry of "Hi 1.2" on Day 2 and "before breakfast", "before lunch", and "before support or bed" readings of "14.8", "10.2" and "5.3", respectively, on Day 3. 12. In referring to the drop in blood glucose levels overnight from Day 2 to Day 3, Dr Howard said the only reason for this could be either that insulin was administered, or the reading was unreliable. 13. When asked about the three readings throughout Day 3 which showed a decline in the deceased's blood glucose levels, which was on the first day of fasting for the deceased, Dr Howard explained that the deceased's blood glucose levels would still rise even though he was fasting. Therefore, fasting did not explain the decrease in the blood glucose levels. 14. In cross-examination, LP maintained that she had accurately recorded the deceased's blood glucose levels, however, she did not do the "1.6" reading on Day 2. 15. Notwithstanding the difficulties with this evidence, a formidable obstacle for the applicant's contention of being misled as to the true state of the applicant's condition and his reliance on the monitoring and accurate recording of the deceased's blood glucose levels is found in the answers provided in his ERISP, his diary entries and conversations. Relevant answers in the ERISP included the following: "Q512 Did she say anything about his, what his blood sugar levels were. Did she ever talk about them? A No. Q513 Did she ever come to you and say that his insulin level, well his blood sugar levels were very high? A Because it's up and down yeah. Q514 Yeah. Did you ever suggest to [LP] that [the deceased] should stop using insulin? A No. Q515 Did [LP] ever come to you and ask you about whether [the deceased] should start using insulin? A No. … Q524 … Did [LP] come to you and say that his blood level was high? A It looks like you are making me to make a conclusion that I am suggesting - - - Q525 No I'm asking you if that happened? A No. Q526 So she never came to you and asked you or told you that his blood level was high? A No." 1. Further obstacles are found in the conversation quoted at [31] and [157] above and the entry made in the applicant's diary on Day 5: "I repeatedly told her not to worry about the fluctuation of readings for blood sugar levels and other readings, so that was why they held on till today." 1. It was open to the jury to find that the applicant placed no reliance at all on the accuracy of the deceased's blood glucose levels and that he was not misled in any way. 2. Although there were difficulties with LP's evidence and the blood glucose readings, there was significant support on the whole of the evidence for the jury's assessment of the honesty and reliability of her evidence. 3. On the whole of the evidence, these difficulties were not such that they ought to have caused the jury acting rationally to entertain a reasonable doubt of the applicant's guilt. 4. For these reasons, I supported the following orders made by the Court on 23 February 2022: 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. 1. HARRISON J: I agree with, and joined in the orders made by the Court for, the reasons comprehensively provided in the judgment of his Honour Price J. 2. IERACE J: I also agree with Price J. ********** Endnotes 1. [2011] NSWCCA 266. 2. B v The Queen [1992] HCA 68; 175 CLR 599, [4] (Brennan J). 3. [1992] HCA 13; 173 CLR 555. 4. [2021] NSWCCA 104; 104 NSWLR 571. 5. R v Murray (1987) 11 NSWLR 12. 6. [2011] HCA 13; 243 CLR 400. 7. [2016] HCA 35; 258 CLR 308. 8. [2020] HCA 12; 268 CLR 123. 9. [2016] NSWCCA 202. 10. Edwards v R [1993] HCA 63; 178 CLR 193. 11. Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, "Admissions to Police" (2002, Judicial Commission of New South Wales) at 186 par [2-120]. 12. [2005] HCA 49; 79 ALJR 1573. 13. [2020] HCA 23; 269 CLR 299. 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 2023