Yu v R [2018] NSWCCA 201

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Yu v R [2018] NSWCCA 201 Hearing dates: 17 August 2018 Date of orders: 17 August 2018 Decision date: 19 September 2018 Before: Hoeben CJ at CL at [1]; White JA at [2]; Fagan J at [69] Decision: 1. To the extent necessary give leave to the applicant pursuant to r 4 of the Criminal Appeal Rules to appeal on the grounds contained in the draft notice of appeal.

2. Order that the appeal be allowed and that the appellant's convictions on counts 2, 3 and 4 on the indictment be quashed.

3. Quash the sentence imposed on the appellant on 21 September 2017. Catchwords: CRIMINAL LAW – conviction appeal – assault – sexual intercourse without consent – where jury was misdirected as to onus of proof in relation to consent – where applicant's counsel failed to object to misdirection – leave given under rule 4 of Criminal Appeal Rules as applicant was deprived of a real chance of acquittal – unnecessary to decide question of the validity of rule 4 – appeal allowed – conviction and sentence quashed Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61K, 61J Criminal Appeal Act 1912 (NSW), ss 5, 6, 28 Cases Cited: ARS v R [2011] NSWCCA 266 Doyle v R; R v Doyle [2014] NSWCCA 4 Green v The Queen (2011) 244 CLR 462 Greenhalgh v R [2017] NSWCCA 94 Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221 Pemble v The Queen (1971) 124 CLR 107 Picken v R; R v Picken [2007] NSWCCA 319 R v Dookheea [2017] HCA 36; (2017) 91 ALJR 960 R v Esposito (Carruthers, Finlay and Studdert JJ) (23 July 1990, unreported) R v Gay [1976] VR 577 R v Sterling (1981) 4 A Crim R 472 Re Richardson; Ex parte Barker (1925) 26 SR (NSW) 142 Category: Principal judgment Parties: Dakang (David) Yu (Applicant) Director of Public Prosections (Respondent) Representation: Counsel: G Bashir SC (Applicant) H Roberts with B Baker (Crown)