Citation: Sawyer v R [2020] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 31 July 2020
Judge(s): Hoeben CJ at CL; Fagan J; Cavanagh J
Background
The applicant was convicted by a jury in the District Court of one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The offence occurred in the early hours of 1 January 2018, following a New Year's Eve party at the complainant's Surry Hills apartment. The applicant and his partner were neighbours of the complainant and her partner, and all had attended the party together.
The complainant gave evidence that, after consuming substantial quantities of alcohol and cocaine throughout the evening, she fell asleep on a couch shortly after sunrise. Her next memory was waking to find the applicant penetrating her. She had not consented, and she immediately reacted with distress.
The applicant admitted sexual intercourse had occurred but maintained the complainant had initiated it, describing prior conversation, kissing, and foreplay. The sole issue at trial was whether the complainant had consented. The jury convicted, and the applicant sought leave to appeal on the ground that the verdict was unreasonable and could not be supported by the evidence.
Legal Issues
- Whether the jury's verdict was unreasonable and could not be supported by the evidence, applying the principles in M v The Queen (1994) 181 CLR 487 and subsequent High Court authority.
- Whether the Crown case was capable of excluding reasonable doubt as to consent, given that the complainant had no memory of events prior to waking during penetration and therefore could not directly contradict the applicant's account of alleged foreplay and initiation.
- Whether the complainant's inability to recall and deny exculpatory matters asserted by the applicant meant the jury was bound, or at least compelled, to entertain a reasonable doubt.
Decision
Hoeben CJ at CL dismissed the appeal. His Honour examined the whole of the evidence and applied the established test: whether it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt of the applicant's guilt. The complainant's account, that she was asleep on the couch and woke to penetration already occurring, was accepted by the jury as credible and reliable. The applicant's evidence that the complainant had her eyes open and was an active participant throughout was in stark, direct conflict with that account.
His Honour found that the complainant's gaps in memory, caused by alcohol and cocaine consumption, were consistent with a memory blackout but were equally consistent with her having been asleep, as she maintained. The jury was entitled to prefer her evidence. The fact that the applicant's account of preliminary events went uncontradicted did not, in the circumstances, compel a reasonable doubt.
Fagan J, agreeing, addressed directly the applicant's argument that the complainant's inability to deny the alleged foreplay meant the jury could not properly reject it. His Honour rejected that submission. The complainant's evidence that she was asleep and woke to find penetration occurring was itself a contradiction of the applicant's narrative: on her account, the prelude to penetration on her side was sleep, not willing participation. It was open to the jury to decline to accept the applicant's version without requiring the complainant to provide an alternative waking account of events prior to penetration.
Fagan J also emphasised the established principle that setting aside a jury verdict is a serious step, and that the jury, as the constitutional tribunal for deciding contested facts, had the advantage of seeing and hearing all witnesses. In the circumstances, the jury's verdict was one it was open to reach on the evidence.
Orders Made
- Leave to appeal against conviction granted.
- The appeal against conviction dismissed.
Key Takeaways
- A complainant's inability to recall events alleged by an accused to have preceded sexual intercourse does not, of itself, require a jury to entertain a reasonable doubt about consent; the complainant's evidence of being asleep and waking to penetration can itself constitute a contradiction of an accused's account of consensual foreplay.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that the test on an unreasonable verdict ground is whether it was open to the jury, acting rationally, to be satisfied beyond reasonable doubt of guilt, not whether the appellate court would have reached the same conclusion.
- Where the prosecution case rests substantially on the complainant's testimony, a jury remains entitled to accept that evidence as credible and reliable even where the accused gives an entirely different, uncontradicted account of the preliminary circumstances surrounding intercourse.
- Gaps in a complainant's memory attributable to alcohol and drug consumption are capable of being consistent with the complainant's own explanation (here, sleep) rather than necessarily supporting an inference favourable to the accused.
- Upholding the conviction, the Court confirmed that resolving a stark conflict between the complainant's and accused's accounts of events is a matter squarely within the jury's province as the tribunal of fact.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61HE(5)(b), 61I
Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Fennell v The Queen (2019) 93 ALJR 1219; [2019] HCA 37
- Pell v The Queen [2020] HCA 12
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35