Citation: Rubinstein v R [2023] NSWCCA 288
Court: NSW Court of Criminal Appeal
Date: 22 November 2023
Judge(s): Adamson JA (leading judgment); Button J (agreeing, with additional observation); R A Hulme AJ (agreeing)
Background
The applicant was convicted by a jury of three sexual offences against a single complainant: two counts of unlawful sexual intercourse without consent (digital penetration and cunnilingus) and one count of attempting unlawful sexual intercourse without consent (penile-vaginal). The offences were alleged to have occurred in the early hours of 11 February 2021 in a Paddington apartment.
The night had begun with a birthday celebration involving a group of women and men who met at bars in Sydney's inner city before moving to a colleague's apartment. The complainant went to the second bedroom intending to sleep, telling the men present that she did not want to have sex. The applicant entered the room with her. What followed included mutual kissing, then digital penetration, a loss of consciousness by the complainant, and upon waking, cunnilingus, followed by an attempted penile-vaginal intercourse that did not complete. The complainant then ordered an Uber and left.
It was not in dispute that sexual contact had occurred. The trial turned entirely on whether the complainant had consented on each occasion, and on the applicant's state of mind regarding that consent.
Legal Issues
- Whether the jury's guilty verdicts on all three counts were unreasonable or could not be supported by the evidence (the sole ground pressed on appeal)
- Whether alleged inconsistencies in the complainant's complaint evidence to friends, family, and police undermined the reliability of her account sufficiently to cause a reasonable doubt
- Whether aspects of the complainant's conduct and demeanour during and after the events (including mutual kissing, her stated concerns about her own clarity, and her description of the applicant's apparent lack of comprehension) were inconsistent with the convictions
Decision
Adamson JA reviewed the whole of the evidence, as required by the applicable test from M v The Queen (1994), to determine whether it was open to a properly instructed and reasonable jury to be satisfied of guilt beyond reasonable doubt on each charge. Her Honour examined in detail the complainant's account, the complaint evidence made shortly after leaving the apartment, the physical injury findings, and the defence evidence including character evidence called on behalf of the applicant.
Adamson JA dismissed each of the applicant's arguments. The factual matters relied upon, including the mutual kissing, the complainant's clothing, her moving the applicant's hands, her stated concern that she had not been sufficiently clear, and the applicant's offer to walk her to her Uber, did not individually or collectively cast doubt on the reasonableness of the verdicts. Her Honour noted that the jury could be taken to have considered these matters, which had all been raised by defence counsel in closing address at trial, and to have rejected them in light of the whole of the evidence.
On the complaint evidence, Adamson JA confirmed that a jury is entitled to have regard to the context, purpose, and timing of each complaint, as well as when the complaint recipient was first asked to recall its contents, when assessing consistency with trial evidence. Minor variations in what the complainant communicated to different recipients shortly after the events did not render her account unreliable.
Button J agreed with the lead judgment and added one significant observation: the observed genital injury to the complainant was a substantially inculpatory factor when assessed in the context of the broader evidence. R A Hulme AJ reviewed the trial record independently and agreed in full with Adamson JA's analysis and conclusions.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the relevant test remains whether it was open to a properly instructed jury, acting reasonably, to be satisfied of guilt beyond reasonable doubt, drawing on the principles from M v The Queen.
- Alleged inconsistencies in complaint evidence do not automatically undermine a complainant's credibility. The timing, context, purpose, and audience of each complaint are all relevant considerations when a jury evaluates consistency.
- Physical injury findings can constitute a significant inculpatory factor in a sexual offence trial, even where other aspects of the evidence are contested.
- Where matters relied upon on appeal were fully ventilated by defence counsel at trial, the jury can be taken to have considered and weighed them. No additional doubt arises simply because those same matters are re-agitated on appeal.
- Favourable character evidence for an accused carries weight only to the extent the jury assigns it. The Court of Criminal Appeal noted that juries routinely and appropriately recognise that people of otherwise good character can commit serious offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61HE
- Criminal Appeal Act 1912 (NSW), s 5
Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Z (a pseudonym) v R [2022] NSWCCA 8