Ewen v R

In the matter of Ewen versus The Queen, the appellant sought to challenge his conviction and sentence for sexual intercourse without consent, as per section 61I of the Crimes Act 1900 (NSW). The case was heard in the Court of Criminal Appeal. The appellant raised several issues for consideration, including whether the trial judge was obligated to explicitly reference the presumption of innocence, whether a “Murray direction” was required, if there was an error in failing to warn about the reliability of the complainant’s evidence due to intoxication, whether the trial judge should have directed that evidence of flight was not applicable as consciousness of guilt, and whether there was an error in the assessment of the reliability of the witness. Furthermore, the appellant contended that the sentence was erroneous, claiming it was unduly harsh and severe, and that the totality principle was not correctly applied.

The court considered the appellant's arguments and examined the legal obligations and principles involved. It found that the principle of the presumption of innocence is inherently part of the onus and standard of proof, and therefore, an explicit reference to it was not necessary. The court also held that the trial judge was not required to give a “Murray direction” because the evidential issues were not solely based on the lack of corroboration. Regarding the warning about the reliability of the complainant's evidence, the court held that no such warning was required as intoxication was not in issue at trial. The court found no error in the trial judge's direction on flight as consciousness of guilt, as no such inference was made. Additionally, the court found no error in the assessment of the witness's reliability and concluded that the verdict was safe and sound.

The appeal against the conviction was dismissed, and the appeal against the sentence was also dismissed. However, leave to appeal was granted on the ground that the sentence was erroneous due to the wrong application of the totality principle. The court concluded that the sentences were not unduly harsh or severe, and the identification of the offences as “mid-range” was appropriate.