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Court of Criminal Appeal 16 December 2021

Zurshig v R

[2021] NSWCCA 309

Sexual offences

Citation: Zurshig v R [2021] NSWCCA 309
Court: NSW Court of Criminal Appeal
Date: 16 December 2021
Judge(s): Basten JA; Adamson J; Wright J

Background

The applicant was convicted by jury of two charges of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), arising from events during the night of 6 to 7 August 2018. The complainant, a 23-year-old woman, had become heavily intoxicated after taking prescription medication and alcohol. The Crown alleged she entered the applicant's car under the mistaken belief he was an Uber driver who would take her to hospital, and that the applicant then had sexual intercourse with her without consent.

The defence argued that the Crown could not prove the absence of consent, pointing to the complainant's amnesia for much of the relevant period due to intoxication. The applicant also ran a positive case that the complainant had consented, citing her entering her contact details into his phone as supporting that inference.

The applicant was sentenced to an overall term of 4 years and 3 months imprisonment with a non-parole period of 2 years and 3 months. He sought leave to appeal against his convictions on two grounds.

  • Whether the Crown Prosecutor's closing address to the jury gave rise to a miscarriage of justice by breaching the standards to which a prosecutor is expected to conform
  • Whether the jury's verdict was unreasonable and could not be supported having regard to the evidence, or was unsafe and unsatisfactory

Decision

Ground 1: Crown Closing Address

The Court applied a three-stage analysis to the complaint about the prosecutor's closing address: how the impugned conduct would have been understood by the jury; whether that understanding involved a breach of the standards expected of a prosecutor; and, if so, whether the accused was deprived of a fair trial. The Court found that the defence characterisation of the prosecutor's language as prejudicial was, at best, marginal. While Basten JA cautioned against colourful or colloquial language in Crown closings, particularly when casting doubt on accused persons' evidence, his Honour found the language used did not rise to the level of causing unfairness.

Even if some concern about the language was warranted, the Court held the effect was not such as to "so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial" (citing Whitehorn v The Queen (1983) 152 CLR 657). Ground 1 was rejected.

Ground 2: Unreasonable Verdict

The Court conducted an independent assessment of the evidence. It noted two matters warranting careful consideration: the complainant's limited memory of events in the car, and the approximately 50-minute period they spent together. However, the Court found powerful support for the prosecution case in the consistency of the complainant's accounts, given very soon after the events while she was greatly distressed, and confirmed by medical evidence of penile/vaginal intercourse.

The Court concluded it was open to the jury to find that the objective probabilities favoured the Crown case: the complainant was obviously intoxicated, did not know the applicant, could not communicate with him in a common language, and had likely entered his car by mistake. All three judges, having independently assessed the evidence, were not left with a reasonable doubt as to the applicant's guilt. Ground 2 was also rejected.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a challenge to a Crown closing address requires a three-stage analysis: how the jury would have understood the conduct, whether it breached prosecutorial standards, and whether it deprived the accused of a fair trial. All three stages must be satisfied before a miscarriage of justice can be established.

  • Basten JA observed that colourful or vernacular language in Crown closings, particularly when directed at an accused person's credibility, is best avoided. Such language risks distracting a jury from the structured exercise of assessing reasonable doubt, even where it does not ultimately produce an unfair trial.

  • In dismissing the unreasonable verdict ground, the Court gave weight to the consistency and promptness of the complainant's complaint evidence, observations by professionals, and CCTV footage as mutually reinforcing elements of the Crown case on consent.

  • Where an appellate court has not observed the trial, it must identify features of the transcribed evidence and surrounding circumstances sufficient to raise a reasonable doubt. No such features existed here across three independent judicial assessments.

  • A complainant's inability to recall significant portions of events due to intoxication does not, of itself, render a guilty verdict unreasonable, particularly where other objective evidence strongly supports the Crown case on consent.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 293A
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Whitehorn v The Queen (1983) 152 CLR 657 (the threshold for a miscarriage of justice arising from Crown conduct)
- Fox v Percy (2003) 214 CLR 118
- FX v R; GX v R [2020] NSWCCA 189
- Gilbert v The Queen (2000) 201 CLR 414
- Hughes v R (2015) 93 NSWLR 474
- Libke v The Queen (2007) 230 CLR 559
- Livermore v R (2006) 67 NSWLR 659
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Nudd v The Queen [2006] HCA 9
- SKA v The Queen (2011) 243 CLR 400
- The Queen v Baden-Clay (2016) 258 CLR 308
- TKWJ v The Queen (2002) 212 CLR 124
- R v Birks (1990) 19 NSWLR 677
- Lane v R [2013] NSWCCA 317