Day v R [2017] NSWCCA 192

Day v R [2017] NSWCCA 192

The appeal failed because the jury was properly directed under the New South Wales statutory scheme governing consent and intoxication, and self-induced intoxication could not support the proposed honest and reasonable mistake direction. It was open to the jury, having regard to the complainant's evidence, immediate complaint, distress and supporting evidence, to be satisfied beyond reasonable doubt that penile-vaginal intercourse occurred without consent and with the Applicant knowing of lack of consent. The sentencing judge's unchallenged findings supported a sentence that was not unreasonable or plainly unjust.

Jurisdiction
Australia
Judgment Date
11 August 2017
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal of the Supreme Court of New South Wales; Appeal After District Court Jury Conviction and Sentence for Sexual Intercourse Without Consent Contrary to S.61 I Crimes Act 1900
Outcome
Appeal against conviction dismissed; leave to appeal against sentence granted; appeal against sentence dismissed; leave to rely on Ground 1 granted; leave to rely on Ground 5 refused.
Legal Topics
['sexual Intercourse Without Consent' 'consent in Sexual Assault Offences' 'self Induced Intoxication' 'honest and Reasonable But Mistaken Belief' 'unreasonable Verdict' 'manifestly Excessive Sentence' 'rule 4 Criminal Appeal Rules']
['criminal Law' 'criminal Procedure' 'sentencing'] ['sexual Intercourse Without Consent' 'consent in Sexual Assault Offences' 'self Induced Intoxication' 'honest and Reasonable But Mistaken Belief' 'unreasonable Verdict' 'manifestly Excessive Sentence' 'rule 4 Criminal Appeal Rules']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal of the Supreme Court of New South Wales; Appeal After District Court Jury Conviction and Sentence for Sexual Intercourse Without Consent Contrary to S.61 I Crimes Act 1900

Legal Issues

  1. 1 ["Whether a miscarriage of justice occurred because the jury was not directed to consider whether the Crown had disproved an honest and reasonable but mistaken belief that the person penetrated was the Applicant's partner." "Whether the jury's verdict was unreasonable or could not be supported by the evidence." 'Whether the sentence of five years and nine months imprisonment with a non-parole period of three years was manifestly excessive.']

Ratio Decidendi

The appeal failed because the jury was properly directed under the New South Wales statutory scheme governing consent and intoxication, and self-induced intoxication could not support the proposed honest and reasonable mistake direction. It was open to the jury, having regard to the complainant's evidence, immediate complaint, distress and supporting evidence, to be satisfied beyond reasonable doubt that penile-vaginal intercourse occurred without consent and with the Applicant knowing of lack of consent. The sentencing judge's unchallenged findings supported a sentence that was not unreasonable or plainly unjust.

Court Disposition

Appeal against conviction dismissed; leave to appeal against sentence granted; appeal against sentence dismissed; leave to rely on Ground 1 granted; leave to rely on Ground 5 refused.

Orders

  • ['The Applicant is granted leave to rely upon Ground 1 on the conviction appeal.' 'The Applicant is refused leave to rely upon Ground 5 on the conviction appeal.' 'Appeal against conviction is dismissed.' 'The Applicant is granted leave to appeal against sentence.' 'The appeal against sentence is dismissed.']