Regina v Mosegaard [2005] NSWCCA 361

Regina v Mosegaard [2005] NSWCCA 361

By majority, the convictions were not unreasonable because the acquittal on count 1 was rationally explicable by evidence suggesting the initial sexual encounter may have been consensual, whereas counts 2 and 3 were supported by different and strong corroborative evidence including crying, screaming, loud music, distress and complaint. The trial judge's directions on the complainant's credibility, drugs and alcohol were adequate. The proposed sexual history evidence was properly excluded under s 293 because the relevant exception was confined to charged acts of intercourse and, in any event, the evidence had marginal probative value that did not outweigh the complainant's likely distress,...

Jurisdiction
Australia
Judgment Date
27 October 2005
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal From Convictions and Sentences in the District Court
Outcome
By majority, appeal against conviction dismissed; leave to appeal against sentence granted but sentence appeal dismissed. Smart AJ dissented and would have allowed the appeal on counts 2 and 3 and ordered a new trial.
Legal Topics
['sexual Intercourse Without Consent' 'aggravated Sexual Assault' 'maliciously Inflict Actual Bodily Harm' 'unreasonable Verdict' 'inconsistent Verdicts' 'exclusion of Complainant Sexual History Evidence' 'fresh Evidence on Appeal' 'miscarriage of Justice' 'severity Appeal']
['criminal Law' 'criminal Procedure' 'evidence' 'sentencing'] ['sexual Intercourse Without Consent' 'aggravated Sexual Assault' 'maliciously Inflict Actual Bodily Harm' 'unreasonable Verdict' 'inconsistent Verdicts' 'exclusion of Complainant Sexual History Evidence' 'fresh Evidence on Appeal' 'miscarriage of Justice' 'severity Appeal']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal From Convictions and Sentences in the District Court

Legal Issues

  1. 1 ['Whether the guilty verdicts on counts 2 and 3 were unreasonable in view of the acquittal on count 1.' "Whether the trial judge erred in excluding proposed cross-examination and evidence about the complainant's sexual experience under s 293 of the Criminal Procedure Act 1986." 'Whether a miscarriage of justice resulted from the absence at trial of expert evidence about the likely effects of alcohol and drugs ingested by the complainant.' 'Whether the sentences imposed were manifestly excessive or otherwise affected by error because of the acquittal on count 1.']

Ratio Decidendi

By majority, the convictions were not unreasonable because the acquittal on count 1 was rationally explicable by evidence suggesting the initial sexual encounter may have been consensual, whereas counts 2 and 3 were supported by different and strong corroborative evidence including crying, screaming, loud music, distress and complaint. The trial judge's directions on the complainant's credibility, drugs and alcohol were adequate. The proposed sexual history evidence was properly excluded under s 293 because the relevant exception was confined to charged acts of intercourse and, in any event, the evidence had marginal probative value that did not outweigh the complainant's likely distress,...

Court Disposition

By majority, appeal against conviction dismissed; leave to appeal against sentence granted but sentence appeal dismissed. Smart AJ dissented and would have allowed the appeal on counts 2 and 3 and ordered a new trial.

Orders

  • ['Appeal against conviction dismissed.' 'Grant leave to appeal against sentence but dismiss the appeal.']