SOUTH v REGINA [2007] NSWCCA 117

Procedural Posture

Criminal Appeal Against Conviction for Sexual Intercourse Without Consent in Circumstances of Aggravation Under Crimes Act 1900, S 61 J. / Appeal in the New South Wales Court of Criminal Appeal From a District Court Jury Conviction.

Legal Issues

1. 1 ['Whether the trial judge misdirected the jury by introducing reasonableness into the issue of honest but mistaken belief in consent.' 'Whether the trial judge\'s question to the jury, "Why would she lie?", caused a miscarriage of justice.' 'Whether Criminal Appeal Rules r 4 prevented the appellant from relying on the summing-up error where objection was taken by a co-accused but not by the appellant.' "Whether the jury's guilty verdict was unreasonable or could not be supported having regard to the evidence." 'Whether it was open to the jury to find that the appellant was reckless as to whether the complainant consented.']

Ratio Decidendi

Although the judge misstated the law on honest but mistaken belief, no miscarriage of justice was shown on that ground. The appeal was allowed because the judge's invitation to consider "Why would she lie?" improperly suggested that the complainant's evidence could be accepted absent a positive answer from the accused, in a case depending almost entirely on her credibility. The co-accused's objection gave the judge an opportunity to cure the error, so Criminal Appeal Rules r 4 did not bar the appellant from relying on it. The verdict was not shown to be unreasonable, including because recklessness as to consent was open, so the proper disposition was a new trial rather than acquittal.

Court Disposition

Appeal allowed; conviction set aside; new trial ordered.

Orders

• ['The appeal is allowed.' "The appellant's conviction is set aside." 'There is to be new trial of the indictment against the appellant.']