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Court of Criminal Appeal 12 October 2026

Yao v R

[2026] NSWCCA 163

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT ADVANTAGES OF JURY WHERE APPLICANT CHARGED ON FOUR COUNTS

Citation: Yao v R [2026] NSWCCA 163
Court: Court of Criminal Appeal
Date: 12 October 2026
Judge(s): Kirk JA and Emmett J; Rigg J agreeing

Background

The applicant and the complainant were on-and-off partners who had been involved in an arrangement combining elements of a romantic relationship, IVF treatment, and a proposed spousal visa application. The four charges arose from events at the applicant's Kingsford rental property on the nights of 10 and 11 October 2022, and involved allegations of common assault, sexual intercourse without consent, and aggravated sexual intercourse without consent. The applicant gave evidence, denying the first three alleged acts and accepting that intercourse occurred on 11 October but saying it was consensual.

At trial in the District Court before Girdham DCJ and a jury, the applicant was acquitted on counts 1 and 2 (events of 10 October) and convicted on counts 3 and 4 (events of 11 October), with the count 3 verdict returned by majority. He was sentenced to an aggregate term of six years and six months imprisonment with a non-parole period of four years and four months.

The applicant sought leave to appeal against his convictions on two grounds: that the verdicts on counts 3 and 4 were inconsistent with the acquittals on counts 1 and 2, and that those guilty verdicts were unreasonable or unsupported by the evidence.

Legal Issues

  • Whether the guilty verdicts on counts 3 and 4 were inconsistent with the not guilty verdicts on counts 1 and 2, such that the only rational explanation for the acquittals was a wholesale rejection of the complainant's credibility.
  • Whether the guilty verdicts on counts 3 and 4 were unreasonable or could not be supported having regard to the evidence, including the cumulative effect of nine challenges to the complainant's reliability and credibility.

Decision

Ground 2: Inconsistency of verdicts

The Court held that the verdicts were not inconsistent. There were several significant distinguishing features between the evidence on the two sets of counts (at [67]-[81]). Most importantly, the events of 11 October were supported by strong complaint evidence: six witnesses gave evidence that the complainant told them she had been raped and physically assaulted by the applicant, and they gave that evidence on 12 October (at [68]). No equivalent complaint evidence existed for the events of 10 October (at [70]).

Three further distinguishing features supported the different verdicts. First, the complainant had initially confused facts from 11 October while giving evidence about 10 October and had to refresh her memory from police statements (at [75]). Second, her accounts of the digital penetration alleged on 10 October were materially inconsistent across her first police statement, her second statement, and her trial evidence (at [76]). Third, there was a lacuna in her evidence about count 1 because she could not identify how she knew the applicant used his fist, as she had not seen his hand (at [23], [80]). Those distinguishing features provided a rational basis for the jury to apply separate scrutiny to each count and give the applicant the benefit of a doubt on counts 1 and 2 without that doubt infecting counts 3 and 4 (at [81]).

Ground 1: Unreasonable verdicts

The applicant advanced nine challenges to the complainant's credibility and reliability, relying on their cumulative effect. The Court assessed each in turn before considering the overall picture (at [88]).

The post-assault recorded conversation (Exhibit 12) was not inconsistent with the complainant's account. The Court, having listened to the recording, found it was consistent with her attempting to placate the applicant while remaining afraid of him, noting the substantial body of authority warning against assumptions about how a victim of sexual assault might behave after an assault (at [92]-[107]). Discrepancies between Ms Liu's evidence about sounds in the house and the complainant's statements about yelling were explicable and did not provide a powerful basis for rejecting the complainant's account (at [109]-[117]). The physical injuries observed by Dr Pfeiffer, including abrasions on the neck and arm and mild redness at the vaginal entrance, provided independent evidence more consistent with the complainant's version than the applicant's (at [120]-[128]). The complainant's willingness to lie to immigration authorities to obtain a spousal visa could be explained and quarantined: a motive to deceive authorities about a visa did not necessarily indicate a willingness to fabricate allegations of physical and sexual assault (at [164], [194]).

Taking the nine challenges cumulatively, the Court was satisfied it remained open to the jury to return guilty verdicts (at [213]-[223]). The case was distinguished from situations where independent evidence rendered a necessary feature of the alleged assault impossible. Rather, the issues were matters of credibility for the jury. The Court placed particular weight on the jury's advantages, including their collective assessment of the complainant's demeanour over several days of evidence, which the defence had expressly invited them to scrutinise (at [218]-[222]). The Court concluded that any residual doubt as to the complainant's reliability on counts 3 and 4 was resolved by those advantages (at [223]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Inconsistent verdicts will not be established merely because charges arose from closely related events. Where distinct features distinguish the evidence on each count, such as the presence of strong complaint evidence for some counts but not others, a rational jury can properly acquit on some counts while convicting on others (at [67]-[81]).

  • A complainant's willingness to deceive authorities for a specific instrumental purpose, such as a visa application, does not necessarily undermine credibility as to entirely separate allegations. Evidence of dishonesty in one context can be explained and quarantined, leaving a jury free to accept other aspects of that witness's evidence beyond reasonable doubt (at [164], [194]).

  • The Court of Criminal Appeal confirmed the importance of caution against assumptions or preconceptions about how a victim of sexual assault might behave after an assault. Post-assault conduct that may appear inconsistent with victimisation, such as a calm or jocular tone in conversation, may be explicable on other bases and does not necessarily create a reasonable doubt (at [104]-[107]).

  • In unreasonable verdict appeals, appellate courts must pay particular regard to the advantages of the jury, which extend beyond seeing and hearing witnesses to the application of collective wisdom and experience of ordinary affairs, including assessing demeanour and emotional authenticity over the course of a trial (at [218]-[222]).

  • Where a challenge to a conviction rests on the cumulative effect of multiple credibility criticisms, courts will assess whether those criticisms are fundamentally inconsistent with the complainant giving truthful evidence about the charged acts. It is only in unusual cases that credibility will be so damaged as to make a conviction unavailable (at [213]-[214]).

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Barney v R [2023] NSWCCA 85
- Ganiji v R [2019] NSWCCA 208
- Harper v R [2022] NSWCCA 211
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Maughan v R [2020] NSWCCA 51
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Nguyen v R [2022] NSWCCA 126
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Rao v R [2019] NSWCCA 290
- The King v ZT (2025) 281 CLR 137; [2025] HCA 9
- Z (a pseudonym) v R [2022] NSWCCA 8