Citation: Withers v R [2025] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 12 May 2025
Judges: Hamill J, Chen J (delivering the principal judgment), McNaughton J
Background
A jury convicted the applicant on 27 March 2023 of two counts of sexual touching without consent and four counts of sexual intercourse without consent, all contrary to the Crimes Act 1900 (NSW). The offending occurred during the early hours of 12 February 2020 at the complainant's home while she was significantly impaired by a combination of prescription medication and alcohol. The complainant had no memory of the events.
The complainant only became aware of what had occurred when the applicant sent her detailed messages about the sexual acts in the days that followed. At trial, it was ultimately conceded that the complainant had not consented. The sole contested issue was whether the applicant knew, or was reckless as to whether, the complainant was not consenting.
The applicant sought leave to appeal against conviction on the single ground that the guilty verdicts were unreasonable having regard to the whole of the evidence.
Legal Issues
- Whether the jury's verdicts were unreasonable or could not be supported by the evidence, applying the well-settled test in M v The Queen (1994) 181 CLR 487 and related High Court authority
- Whether the applicant's apparently internally consistent account on the issue of knowledge was sufficient to raise a reasonable doubt about his guilt
- Whether the pre- and post-offence messages between the parties could be construed as indicating the complainant's willingness to engage in consensual sexual activity
- Whether the evidence of the complainant's impaired physical and mental state, taken together with the other circumstantial evidence, was sufficient to prove beyond reasonable doubt that the applicant knew she was not consenting
Decision
The Court (Chen J delivering the principal judgment, Hamill and McNaughton JJ agreeing) granted leave to appeal but unanimously dismissed the appeal. Having independently reviewed the entire trial record, including electronic exhibits, all three judges were satisfied it was well open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt on each count.
On the question of the applicant's knowledge, the Court rejected the submission that his apparently consistent account compelled a reasonable doubt. Chen J held that apparent internal consistency does not render evidence cogent, credible, reliable, or inherently probative when assessed against all of the evidence. The applicant's claim that he only realised the complainant had not consented after the events had occurred was open to rejection by the jury.
The messaging between the parties featured in the prosecution's circumstantial case. The Court found that, while some messages were sexually explicit, they could not objectively be construed as the complainant expressing willingness to engage in consensual sexual activity with the applicant. She had repeatedly and clearly stated her boundaries, rebuffing his suggestions of sexual contact even while continuing to engage in what Hamill J described as "sexual banter." That distinction was significant to the Court's analysis.
The evidence of the complainant's compromised state was assessed as compelling. It was established through the complainant's own account of what she had consumed, pharmacological evidence, voice messages she left with her sister in the early hours of 12 February 2020, and the applicant's own descriptions of her appearance and conduct when he arrived. The Court also found that good character evidence was insufficient to overcome the weight of evidence on the question of knowledge. Hamill J described the overall case against the applicant as a strong one.
Orders Made
- Time for filing the notice of appeal extended to 21 December 2024
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that apparent internal consistency in an accused's account does not, of itself, render that evidence credible or reliable; the jury is entitled to assess it against the totality of the evidence.
- Where knowledge of consent is the contested issue, a substantial body of circumstantial evidence (including pre-offence messaging, toxicological evidence, and the accused's own descriptions of the complainant's state) can collectively support a finding of guilt beyond reasonable doubt, even without direct evidence of the accused's state of mind.
- Sexually explicit messaging between parties does not necessarily establish a complainant's willingness to consent to sexual activity, particularly where the complainant has repeatedly and clearly communicated the limits of what she was prepared to do.
- Good character evidence, while relevant, will not necessarily generate a reasonable doubt where the other evidence of knowledge of non-consent is sufficiently weighty.
- The standard applied by the Court followed the established High Court line of authority, including M v The Queen, SKA v The Queen, Pell v The Queen, and Dansie v The Queen, requiring the appellate court to undertake an independent assessment of the evidence's sufficiency and quality before concluding that a verdict was or was not open.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61I, 61KC(a)
- Criminal Appeal Act 1912 (NSW), s 5(1)
Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- The King v ZT [2025] HCA 9
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Quinn v R [2023] NSWCCA 229