Arroyo v The Queen

The applicant, Arroyo, sought leave to appeal against his conviction for unlawful sexual intercourse without consent, entered following a jury trial in the Supreme Court of the Northern Territory. The sole ground of appeal was that the jury's verdict was unreasonable and unsupported by the evidence, specifically concerning the finding that the applicant had inserted his penis into the complainant's vagina.

The Court of Criminal Appeal was required to determine whether, having regard to the entirety of the evidence and allowing for the jury's advantage in observing witnesses, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offence charged. This involved an assessment of the evidence's probative force, considering any discrepancies or inadequacies that might suggest a significant possibility of an innocent person being convicted.

The Court granted leave to appeal, finding that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt for unlawful sexual intercourse without consent. While acknowledging the jury's advantage in assessing the complainant's credibility, the Court highlighted significant issues with the evidence. The Court noted that the complainant was intoxicated and asleep when the events occurred, and the evidence of Mr. Perez, who discovered the applicant in the complainant's room, contained inconsistencies. Specifically, Mr. Perez observed the applicant on top of the complainant under a doona, heard a female voice ask "Who is there?", and then found the complainant sitting on her bed with a doona wrapped around her after the applicant left. Given these circumstances and the lack of direct evidence of penetration, the Court concluded that the verdict was unreasonable.

Consequently, the Court of Criminal Appeal set aside the conviction for unlawful sexual intercourse without consent and substituted a verdict of attempted sexual intercourse without consent.