Mullins v R [2008] NSWCCA 302

Mullins v R [2008] NSWCCA 302

The conviction was not shown to be unreasonable or unsupported by the evidence. Despite gaps in the complainant's recollection, it was open to the jury to accept that she went to sleep, woke to find the appellant having intercourse with her, immediately protested and hit him, and promptly complained in a distressed state. From the circumstance that she was asleep when intercourse commenced, it was open to the jury to be satisfied beyond reasonable doubt that she did not consent and that the appellant knew she was not consenting or was reckless as to whether she was consenting. The jury was also entitled to reject the appellant's account of active consent.

Jurisdiction
Australia
Judgment Date
12 December 2008
Procedural Posture
Criminal Appeal Against Conviction / Judgment of the New South Wales Court of Criminal Appeal
Outcome
Appeal against conviction dismissed.
Legal Topics
['sexual Assault' 'consent' 'knowledge or Recklessness as to Consent' 'unsafe and Unsatisfactory Verdict' 'firsthand Hearsay']
['criminal Law' 'evidence'] ['sexual Assault' 'consent' 'knowledge or Recklessness as to Consent' 'unsafe and Unsatisfactory Verdict' 'firsthand Hearsay']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Judgment of the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the conviction was unsafe and unsatisfactory because the evidence was insufficient to support a conviction.' 'Whether it was open to the jury to be satisfied beyond reasonable doubt that the complainant did not consent to sexual intercourse.' 'Whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew the complainant was not consenting or was reckless as to whether she was consenting.']

Ratio Decidendi

The conviction was not shown to be unreasonable or unsupported by the evidence. Despite gaps in the complainant's recollection, it was open to the jury to accept that she went to sleep, woke to find the appellant having intercourse with her, immediately protested and hit him, and promptly complained in a distressed state. From the circumstance that she was asleep when intercourse commenced, it was open to the jury to be satisfied beyond reasonable doubt that she did not consent and that the appellant knew she was not consenting or was reckless as to whether she was consenting. The jury was also entitled to reject the appellant's account of active consent.

Court Disposition

Appeal against conviction dismissed.

Orders

  • ['Appeal against conviction dismissed.']