Xu v R [2023] NSWCCA 93

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Xu v R [2023] NSWCCA 93 Hearing dates: 28 September 2022 Date of orders: 21 April 2023 Decision date: 21 April 2023 Before: Garling J at [1]; Hamill J at [3]; N Adams J at [23]. Decision: (1) Grant an extension of time. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – conviction appeal – applicant convicted of sexual assault offences – application for extension of time – seven grounds of appeal – whether the trial miscarried and there was a substantial miscarriage of justice arising from how the Crown prosecutor opened on the complainant's intoxication and the element of consent and the trial judge's response to this – whether the trial miscarried because there was no expert evidence on intoxication at trial – whether the trial miscarried because of the trial judge's ruling to disallow the complainant from being cross-examined on a particular document – whether the verdicts were unreasonable – strong Crown case – alleged inconsistencies all jury matters that were raised at trial – applicant seeks to adduce "new" evidence on intoxication, the complainant's residence and CCTV footage – new evidence does not prove applicant's innocence or raise a doubt about guilt – all grounds dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 61, 61HA, 61I, 61L, 61P Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1) Criminal Procedure Act 1986 (NSW), s 159 Evidence Act 1995 (NSW), ss 55, 101A, 102, 103 Cases Cited: Beattie v The Queen (2020) 287 A Crim R 287; [2020] NSWCCA 334 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Hamide v The Queen (2019) 101 NSWLR 455; [2019] NSWCCA 219 Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 Holt v R [2021] NSWCCA 140 House v The King (1936) 55 CLR 499; [1936] HCA 40 Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 SC v R [2023] NSWCCA 60 SC v The Queen [2023] NSWCCA 60 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Xie v The Queen (2021) 386 ALR 371; [2021] NSWCCA Zhou v The Queen [2021] NSWCCA 278 Texts Cited: New South Wales Law Reform Commission, Consent in relation to sexual offences (Consultation Paper No 21, October 2018) Category: Principal judgment Parties: Longwei Xu (Applicant) Crown (Respondent) Representation: Counsel: Mr T Hickie (Applicant) Ms C Curtis (Respondent)