Crown appeals acquittal in sexual assault case … Intoxication … Consent … NSW Court of Criminal Appeal … Sophie Taylor courtside 

L was acquitted of sexual assault charges at a judge alone trial after previously being convicted of the same charges by a jury. 

Sally Dowling SC, for the crown, argued that the trial judge had erred and made misdirections in the judgment. 

“Experienced trial judges do make mistakes,” Dowling told Justices Hoeben, Davies and Bellew.

She submitted that the trial judge mistakenly took into account the fact that the accused was intoxicated at the time of the offence. The judge had made several references to the fact that the accused’s self-induced intoxication could not be taken into account when determining reckless intent, but failed to clarify that this also applied to the state of mind of the accused. 

The trial judge had also referred to the fact that the accused was drunk at the time of the alleged offence, and Dowling argued that the issue of the accused’s intoxication “crept into … and infected [the judge’s] reasoning”. 

Phillip Boulten SC for the respondent admitted that the trial judge had made a “slip”  but argued that this was merely a typographical error and did not affect the meaning of the judgment. 

He said that even if the error had been made, this did not play a significant part in the reasoning to warrant subjecting the accused to another trial.  

Dowling submitted that there was no express reference by the trial judge to any reasonable steps that the accused might have taken to ascertain consent. She said: 

“In a situation like this where the accused person and the complainant are strangers, and he knows she is a virgin, failure to ascertain consent will be highly relevant.” 

Boulten argued that the accused had taken several steps to ascertain consent and that the trial judge made reference to these steps. He said:

“Things develop when people are together, and there is a million different varieties of interaction that might inform somebody when they’re embarking on some sexual activity about consent.” 

He told the appeal judges that the accused had taken steps such as persuading the complainant to stay with him, and by kissing the complainant. 

“The accused asked the complainant if she would like to go somewhere more private. That’s a step,” he said. 

“That’s a step towards having sexual intercourse; it’s not a step towards ascertaining consent,” Dowling said. 

Boulten said that allowing the appeal would be unduly “oppressive” for the respondent in a way that challenging a conviction would not be. 

“The respondent has been the beneficiary of not just an acquittal but specific findings of fact that go to both the credit of the complainant, and to what elements have been proved by the prosecution … Those are all up for grabs.” 

The crown submitted that it was in the public interest to have the issue retried properly. 

Judgment is reserved.