Shepherd v Regina [2007] NSWCCA 203

Shepherd v Regina [2007] NSWCCA 203

The appeal against conviction had to be allowed because the ground that succeeded in South v Regina [2007] NSWCCA 117, concerning the trial judge's summing up by reference to why the complainant would lie, was equally available to the appellant, and the Crown properly conceded that it should succeed. The conviction was therefore quashed and a new trial ordered.

Jurisdiction
Australia
Judgment Date
13 July 2007
Procedural Posture
Criminal Appeal Against Conviction, With Leave Sought to Appeal Against Sentence / Court of Criminal Appeal; Appeal Allowed After Conviction in the District Court
Outcome
Appeal allowed; conviction quashed; new trial ordered.
Legal Topics
['aggravated Sexual Intercourse Without Consent' 'aggravated Indecent Assault' 'offence Committed in Company' 'jury Directions' 'consent' 'intoxication' 'honest and Mistaken Belief in Consent' 'appeal Against Conviction']
['criminal Law' 'criminal Procedure'] ['aggravated Sexual Intercourse Without Consent' 'aggravated Indecent Assault' 'offence Committed in Company' 'jury Directions' 'consent' 'intoxication' 'honest and Mistaken Belief in Consent' 'appeal Against Conviction']

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, With Leave Sought to Appeal Against Sentence / Court of Criminal Appeal; Appeal Allowed After Conviction in the District Court

Legal Issues

  1. 1 ['Whether the trial judge erred in summing up the jury on the basis that the Crown case invited the jury to consider why the complainant would lie.' "Whether the trial judge gave inadequate or incorrect directions concerning the possibility of the appellant's mistaken belief that the complainant was consenting." "Whether the trial judge failed to direct the jury about the impact of the complainant's intoxication on proof of lack of consent, honest and mistaken belief of consent and recklessness." 'Whether the appellant required leave under r 4 of the Criminal Appeal Rules because the intoxication direction point was not taken at trial.' 'Whether the sentence appeal required determination after the conviction appeal succeeded.']

Ratio Decidendi

The appeal against conviction had to be allowed because the ground that succeeded in South v Regina [2007] NSWCCA 117, concerning the trial judge's summing up by reference to why the complainant would lie, was equally available to the appellant, and the Crown properly conceded that it should succeed. The conviction was therefore quashed and a new trial ordered.

Court Disposition

Appeal allowed; conviction quashed; new trial ordered.

Orders

  • ['Appeal allowed.' 'Conviction quashed.' 'Order a new trial.']