Cha v R [2012] NSWCCA 142

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cha v R [2012] NSWCCA 142 Hearing dates: 20 June 2012 Decision date: 04 July 2012 Before: McClellan CJ at CL at [1] Price J at [34] Button J at [35] Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal - conviction - whether directions of trial judge correct - whether directions regarding whether certain acts constitute sexual intercourse correct - leave to appeal granted - appeal dismissed. Legislation Cited: Crimes Act 1900 Criminal Procedure Act Cases Cited: Johnson v Miller (1937) 59 CLR 576 R v Khouzame &Saliba [1999] NSWCCA 173 R v S [2000] 1 Qd R 445 Walsh v Tattersall (1986) 188 CLR 77 Category: Principal judgment Parties: Jong Kyu Cha (Appellant) Crown Representation: Counsel: W Brewer (Appellant) T Smith (Crown) Solicitors: Ford Criminal Lawyers (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/288593 Decision under appeal Date of Decision: 2011-09-02 00:00:00 Before: Syme DCJ File Number(s): 2010/288593

Judgment 1McCLELLAN CJ at CL: The appellant was tried on an indictment which included two counts of having sexual intercourse with the complainant without her consent, being a breach of s 61I of the Crimes Act 1900. He was also charged with assaulting the complainant and, at the time of the assault, committing an act of indecency contrary to s 61L of the Crimes Act. He was only convicted of one of the counts which was in the following terms: 'On 30 August 2010 at Ultimo in the State of New South Wales, did have sexual intercourse with [the complainant] without her consent knowing she was not consenting thereto." 2The appellant was sentenced to a non-parole period of 2 years and 6 months to date from 6 June 2011 and expire on 5 December 2013 with an additional term of 1 year and 6 months to expire on 5 June 2015. 3There are five grounds of appeal against conviction. The appellant does not seek leave to appeal against his sentence. 4The grounds of appeal are as follows: