Citation: Yu v R [2018] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 19 September 2018
Judges: Hoeben CJ at CL; White JA; Fagan J
Background
The appellant stood trial in the District Court on nine counts arising from two separate incidents involving a complainant with whom he had been in an intimate relationship. The first incident involved an assault in May 2015. The second, spanning the evening of 25 into the morning of 26 June 2015, gave rise to charges of indecent assault, and sexual intercourse without consent.
The appellant was convicted on five counts and acquitted on four. He was sentenced to an aggregate term of four years' imprisonment with a non-parole period of two years. He appealed against his convictions on counts 2, 3 and 4, being an indecent assault and two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW).
The central dispute on appeal concerned the trial judge's directions to the jury. The appellant argued that the judge failed to properly direct the jury on the elements of lack of consent and knowledge of lack of consent, which are essential ingredients of the offences charged.
Legal Issues
- Whether the trial judge misdirected the jury on count 2 by failing to direct that the Crown must prove beyond reasonable doubt the absence of consent and the appellant's knowledge of that absence
- Whether similar misdirection affected the jury's consideration of counts 3 and 4
- Whether leave should be granted under rule 4 of the Criminal Appeal Rules to raise grounds not objected to at trial, given that defence counsel failed to seek a redirection or further direction
- Whether the validity of rule 4 of the Criminal Appeal Rules needed to be determined
Decision
On count 2 (indecent assault), the trial judge directed the jury that if the alleged conduct "clearly gives rise to a sexual connotation, then that is sufficient to establish that the assault was indecent, irrespective of whether or not there was consent." The Crown accepted on appeal that this amounted to a misdirection on an essential element of the offence. It effectively told the jury that consent was irrelevant, when in fact the Crown was required to prove beyond reasonable doubt that the complainant did not consent and that the appellant knew she had not consented.
Because neither the Crown nor defence counsel objected at trial or sought a redirection, the appellant needed leave under rule 4 of the Criminal Appeal Rules to raise the complaint on appeal. White JA noted that the rule's validity had been questioned in earlier cases but declined to resolve that question, since leave ought to be granted in any event. The Court found that the misdirection deprived the appellant of a real chance of acquittal, which was sufficient to justify the grant of leave.
On counts 3 and 4, the Court similarly identified misdirection in the judge's directions regarding the element of the appellant's knowledge of the complainant's lack of consent. The Crown did not oppose the grant of leave or contend that the proviso in s 6 of the Criminal Appeal Act 1912 (NSW) should apply. All parties accepted that retrials were warranted on counts 2, 3 and 4.
Fagan J added a practical observation: the misdirections likely would have been avoided if the trial judge had provided the jury with a written document setting out the elements of each offence. His Honour noted that defence counsel at trial had opposed providing such a document, preferring reliance on the Bench Book. The judge's tendency to repeat the phrase "whether or not" in oral directions produced the legal inaccuracy that ultimately undermined the convictions.
Orders Made
- Leave granted to the appellant under rule 4 of the Criminal Appeal Rules to appeal on the grounds in the draft notice of appeal
- Appeal allowed; convictions on counts 2, 3 and 4 quashed
- Sentence imposed on 21 September 2017 quashed
Key Takeaways
- A conviction for indecent assault and sexual intercourse without consent requires the Crown to prove beyond reasonable doubt both the absence of consent and the accused's knowledge of that absence; a direction that consent is irrelevant to the indecency element is a fundamental misdirection.
- Where trial counsel fails to object to a misdirection or seek a redirection, the appellant must obtain leave under rule 4 of the Criminal Appeal Rules to raise the point on appeal. The Court of Criminal Appeal confirmed that leave will be granted where the misdirection deprived the appellant of a real chance of acquittal.
- The Court expressly reserved the question of rule 4's validity, noting it had not been fully argued and that resolving it was unnecessary given leave should be granted on the merits regardless.
- Fagan J's reasons highlight the practical value of written jury directions setting out the elements of each offence, particularly where those elements involve alternatives or require nuanced distinctions such as knowledge of lack of consent under s 61I of the Crimes Act 1900 (NSW).
- Oral elaboration of elements during a summing-up carries a risk of inadvertent inaccuracy; a written elements document, settled with input from both counsel, reduces that risk materially.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J, 61K, 61L
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 28
- Criminal Appeal Rules, r 4
Cases
- 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 (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