Rubinstein v R [2023] NSWCCA 288

Rubinstein v R [2023] NSWCCA 288

The appeal failed because, on the whole of the evidence, it was open to the jury to accept the complainant's evidence that she did not consent and repeatedly communicated non-consent, to reject the applicant's contrary account, and to be satisfied beyond reasonable doubt of the applicant's guilt on all three counts. The matters relied on by the applicant, including the complainant's conduct before and during the incident, her later concerns about clarity, the toxicology evidence and alleged inconsistencies in complaints, did not make the verdicts unreasonable.

Jurisdiction
Australia
Judgment Date
22 November 2023
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal From District Court Convictions Following Jury Trial
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['sexual Intercourse Without Consent' 'attempting Sexual Intercourse Without Consent' 'unreasonable Verdict' 'consent' 'knowledge About Consent' 'complaint Evidence' 'credibility of Complainant']
['criminal Law' 'criminal Procedure'] ['sexual Intercourse Without Consent' 'attempting Sexual Intercourse Without Consent' 'unreasonable Verdict' 'consent' 'knowledge About Consent' 'complaint Evidence' 'credibility of Complainant']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal From District Court Convictions Following Jury Trial

Legal Issues

  1. 1 ['Whether the verdicts on all counts were unreasonable and could not be supported by the evidence.' "Whether aspects of the complainant's conduct, including getting into bed with the applicant, mutual kissing, moving the applicant's hands, and later communications, required the jury to have a reasonable doubt." "Whether alleged inconsistencies in complaint evidence to friends, colleagues and family undermined the complainant's credibility and reliability." "Whether expert toxicology evidence about the complainant passing out from alcohol undermined the complainant's evidence."]

Ratio Decidendi

The appeal failed because, on the whole of the evidence, it was open to the jury to accept the complainant's evidence that she did not consent and repeatedly communicated non-consent, to reject the applicant's contrary account, and to be satisfied beyond reasonable doubt of the applicant's guilt on all three counts. The matters relied on by the applicant, including the complainant's conduct before and during the incident, her later concerns about clarity, the toxicology evidence and alleged inconsistencies in complaints, did not make the verdicts unreasonable.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']