Benissa Yau

The appellant, convicted of sexual assault against his wife, brought a motion under s. 683(1)(b) of the Criminal Code to cross-examine her in aid of a fresh evidence application on appeal.

The appellant sought to introduce evidence of the complainant's post-conviction allegations and conduct in family court proceedings to show she fabricated the sexual assault allegations to secure child custody.

The Court of Appeal granted the motion, finding it arguable that the fresh evidence could affect the result, and ordered the cross-examination subject to strict conditions to protect the complainant.

The appellant appealed his conviction and sentence for sexual assault.

He argued the trial judge erred in instructing the jury on the complainant's credibility and by stating that penetration was not relevant to establish sexual assault.

The Court of Appeal dismissed the conviction appeal, finding the jury would have understood the evidence relevant to the complainant's credibility and that the trial judge was correct in law regarding penetration.

The sentence appeal was also dismissed as the sentence was not outside the appropriate range.

The appellant was convicted of robbery and sentenced to three years' imprisonment after receiving 1.5:1 credit for pre-trial custody.

He appealed the sentence, arguing he should have received 2:1 credit and that the sentence was demonstrably unfit.

The Court of Appeal dismissed the appeal, finding the sentencing judge properly considered the appellant's poor parole prospects, extensive criminal record, and defence-caused delays in reducing the pre-trial custody credit.

The court also held the sentence was fit given the circumstances of the convenience store robbery.