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Court of Criminal Appeal 31 October 2025

Poveda v R

[2025] NSWCCA 174

Sexual offences

Citation: Poveda v R [2025] NSWCCA 174
Court: NSW Court of Criminal Appeal
Date: 31 October 2025
Judge(s): Stern JA (primary reasons); Garling J and Sweeney J (agreeing)

Background

The applicant was convicted at his second jury trial on two counts of sexual intercourse without consent (knowing the complainant did not consent) and two counts of intentional sexual touching without consent (knowing the complainant did not consent), contrary to ss 61I and 61KC(a) of the Crimes Act 1900 (NSW). He was acquitted on a fifth count. The offending was alleged to have occurred shortly after 9 am on 1 January 2020 at his home, following a New Year's Eve party, while the complainant was lying on a lounge suite. The applicant is the partner of one of the complainant's sisters.

The applicant's account shifted during the proceedings: he initially denied any sexual activity, then later claimed the activity was consensual and initiated by the complainant. A key factual dispute at trial concerned the precise timing of events relative to a third person, Mr McGuigan, entering the house and falling asleep at the other end of the lounge suite. The trial also involved CCTV footage retained by the applicant, which became significant in the context of the complainant's cross-examination.

A first trial was discharged mid-way through the complainant's cross-examination in May 2023. The second trial proceeded in May 2024, resulting in conviction. The applicant was sentenced to an aggregate term of five years' imprisonment with a non-parole period of three years and five months.

  • Whether the guilty verdicts were unreasonable or could not be supported by the evidence (ground one)
  • Whether the trial judge's comment in summing up, that the complainant appeared "potentially confused or misled" during cross-examination about CCTV footage, occasioned a miscarriage of justice (ground two)
  • Whether the trial judge's direction to the jury to assess the applicant's knowledge by considering his state of mind as if he had not been intoxicated occasioned a miscarriage of justice (ground three, requiring leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) because no complaint was raised at trial)

Decision

Ground one: Unreasonable verdict

The applicant argued that the Crown was required to prove beyond reasonable doubt that the charged sequence of offending occurred after Mr McGuigan entered the house, and that the offending could not have taken place without him noticing. The Court rejected both propositions. Stern JA held that all events described by the complainant could readily have occurred within the relevant eleven-minute window, and that there was no reason to doubt the offending could have occurred while Mr McGuigan, who had been awake all night, slept at the far end of the lounge suite. Nothing the complainant described during the offending was particularly noisy or likely to have woken him. To the extent the Court entertained any residual doubt from reading the transcript alone, that doubt could readily have been resolved by the jury's advantage in seeing and hearing the witnesses directly. The applicant's separate argument that the complainant's apparent breach of the trial judge's direction not to discuss her evidence undermined her credibility was also rejected; the jury could readily have found that any such breach, occurring during a period of evident distress for the complainant, did not significantly undermine her credibility or reliability.

Ground two: Trial judge's comment on cross-examination

The trial judge observed in her summing up that the complainant appeared "potentially confused or misled" during cross-examination, in circumstances where she had been questioned by reference to only part of the available CCTV footage. The applicant argued this comment was unnecessary and unfair. The Court disagreed. Stern JA found the comment was appropriate to address an unfairness arising from the partial nature of the cross-examination. Critically, the trial judge had prefaced the comment by reminding the jury that they could disagree with and entirely disregard it, and that questions of fact including credibility were for them alone. The trial judge also directed the jury not to be prejudiced against the applicant or his lawyers because "errors" are occasionally made in trials. Read as a whole, the summing up did not deflect the jury from its fundamental task of determining whether the prosecution had proved each element beyond reasonable doubt. The Court also confirmed the trial judge was not precluded from making the comment simply because the Crown had not recalled the complainant to give further evidence.

Ground three: Intoxication direction

Because no objection was raised at trial, the applicant required leave under r 4.15 of the Criminal Appeal Rules to raise this ground. The direction under challenge concerned s 61HE(4)(b) of the Crimes Act, which relevantly requires the fact-finder to determine an accused's knowledge by setting aside the effect of self-induced intoxication. The trial judge directed the jury to consider the applicant's state of mind as if he had not been intoxicated. Stern JA held this was not an error: the direction maintained the necessary focus on the applicant's actual state of mind while properly directing the jury to exclude the effects of intoxication. The use of the phrase "if he had not been intoxicated" did not introduce a hypothetical reasonable sober person into the analysis. The jury was not deflected from its fundamental task and no miscarriage of justice was established, so leave under r 4.15 was refused. Stern JA added a note of caution that directions on s 61HE(4)(b) should be unambiguous in emphasising that there is no room for hypothesising beyond what is necessarily involved in removing self-induced intoxication from the analysis.

Orders Made

  • Leave to appeal granted on grounds one and two
  • Leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) refused on ground three
  • Appeal dismissed

Key Takeaways

  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed that any doubt arising from a reading of the trial transcript alone may be resolved by reference to the jury's advantage in observing witnesses give their evidence, consistent with the principles in M v The Queen (1994) 181 CLR 487 and Pell v The Queen (2020) 268 CLR 123.
  • A trial judge's comment in summing up that a complainant appeared "potentially confused or misled" during cross-examination does not occasion a miscarriage of justice where the judge clearly reminds the jury of its exclusive role as the arbiter of fact and credibility, and the comment does not deflect the jury from determining whether the elements of the offences are proved beyond reasonable doubt.
  • Under s 61HE(4)(b) of the Crimes Act 1900 (NSW), directing a jury to assess an accused's knowledge "as if he had not been intoxicated" is an acceptable paraphrase of the statutory requirement to ignore self-induced intoxication, provided the direction maintains its focus on the accused's actual state of mind.
  • Stern JA emphasised that directions on s 61HE(4)(b) should leave no room for hypothesising beyond what is strictly necessary to exclude the accused's self-induced intoxication from the knowledge inquiry.
  • Where no complaint about a direction was made at trial, leave is required under r 4.15 of the Criminal Appeal Rules to raise the point on appeal, and that leave will be refused where the direction did not deflect the jury from its fundamental task and no miscarriage of justice is established.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HE(4)(b), 61HK(5)(b), 61I, 61KC(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v ZT [2025] HCA 9; 99 ALJR 676
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
- B v The Queen (1992) 175 CLR 599