Xie v R [2022] NSWCCA 185

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Xie v R [2022] NSWCCA 185 Hearing dates: 11 July 2022 Date of orders: 31 August 2022 Decision date: 31 August 2022 Before: Bell CJ at [1]; Mitchelmore JA at [117]; Yehia J at [118] Decision: 1. To the extent necessary, grant leave to appeal other than in respect of the second ground of appeal. 2. Set aside and quash the appellant's conviction in respect of Count 1 and direct a verdict of acquittal in relation to Count 1. 3. Order a new trial in relation to Count 2. 4. Otherwise dismiss the appeal in relation to Counts 5-12. 5. Remit the proceedings to the District Court for the resentencing of the appellant in light of his acquittal on Count 1. 6. Matter to be listed in the District Court Arraignment List at 9.30am on Friday 9 September 2022. Catchwords: CRIME – appeals – appeal against conviction – unreasonable verdict – whether trial judge erred in failing to find that there was no case to answer in relation to a count – whether trial miscarried having regard to that count being left to the jury – where that count entailed the appellant causing the complainant to take three drugs simultaneously by way of a drink – whether it was open to the jury to find that the appellant provided the complainant with the drug methylamphetamine – whether jury engaged in improper speculation or conjecture rather than logical inference CRIME – appeals – appeal against conviction – verdict of acquittal substituted – where verdict of acquittal substituted for verdict in respect of one count but not others – where verdict on that count was unreasonable CRIME – appeals – appeal against conviction – new trial – whether a new trial should be ordered on the remaining counts in light of a wrongful conviction on two counts – where the remaining counts involved a different complainant – where the remaining counts were committed at a different time – where acquittal entered on one count indicates jury was able to differentiate between charges involving different complainants CRIMINAL PROCEDURE – trial – jury – conduct of Crown prosecutor – closing address of Crown prosecutor – whether trial miscarried because of the Crown prosecutor's closing address – where experienced defence counsel made no objection at trial – where it was not suggested that the references were without foundation Legislation Cited: Crimes Act 1900 (NSW) s 38(b) Criminal Procedure Act 1986 (NSW) s 130A Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15 Cases Cited: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 Bugeja v The Queen (2010) 30 VR 493; [2010] VSCA 321 Crockford v R [2022] NSWCCA 115 Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 Ford (a pseudonym) v The Queen (2020) 63 VR 405; [2020] VSCA 162 FX v R; GX v R (2020) 290 A Crim R 31; [2020] NSWCCA 189 Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 Jones v Great Western Railway Co (1930) 144 LT 194 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 Lyndon v R [2014] NSWCCA 112 Medich v R [2021] NSWCCA 36 Ritchie (a pseudonym) v R [2019] VSCA 202 Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429 Seltsam Pty Ltd v McGuiness (2002) 49 NSWLR 262; [2000] NSWCA 29 Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42 Zurshig v R [2021] NSWCCA 309 Category: Principal judgment Parties: Raymond Xie (Appellant) The Crown (Respondent) Representation: Counsel: