Zurshig v R [2021] NSWCCA 309

Zurshig v R [2021] NSWCCA 309

The Crown closing was not inappropriate: the references challenged by the applicant were tied to evidence and objective probabilities bearing on consent and the applicant's state of mind, and the reference to the applicant being Mongolian was relevant to his limited English and the improbability of meaningful discussion. Any concerns about social mores were addressed by defence counsel in closing. On the whole of the evidence, including complaint evidence, professional observations, expert evidence, CCTV footage, DNA evidence and objective probabilities, it was open to the jury to be satisfied beyond reasonable doubt that KB did not consent and that the applicant could not have believed...

Jurisdiction
Australia
Judgment Date
16 December 2021
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal Against Conviction in the Court of Criminal Appeal
Outcome
Leave to appeal against conviction granted; appeal dismissed.
Legal Topics
['sexual Intercourse Without Consent' 'crown Closing Address' 'miscarriage of Justice' 'unreasonable Verdict' 'consent' 'intoxication and Amnesia' 'complaint Evidence']
['criminal Law' 'criminal Procedure' 'evidence'] ['sexual Intercourse Without Consent' 'crown Closing Address' 'miscarriage of Justice' 'unreasonable Verdict' 'consent' 'intoxication and Amnesia' 'complaint Evidence']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal Against Conviction in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the Crown Prosecutor's closing address gave rise to a miscarriage of justice." "Whether the jury's verdicts were unreasonable and could not be supported having regard to the evidence." 'Whether leave to appeal was required and should be granted for grounds not involving a question of law alone.']

Ratio Decidendi

The Crown closing was not inappropriate: the references challenged by the applicant were tied to evidence and objective probabilities bearing on consent and the applicant's state of mind, and the reference to the applicant being Mongolian was relevant to his limited English and the improbability of meaningful discussion. Any concerns about social mores were addressed by defence counsel in closing. On the whole of the evidence, including complaint evidence, professional observations, expert evidence, CCTV footage, DNA evidence and objective probabilities, it was open to the jury to be satisfied beyond reasonable doubt that KB did not consent and that the applicant could not have believed...

Court Disposition

Leave to appeal against conviction granted; appeal dismissed.

Orders

  • ['Grant the applicant leave to appeal against his conviction.' 'Dismiss the appeal.']