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Withers v The King

Withers v The King

Case [2025] NSWCCA 67 12 May 2025

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Withers v R [2025] NSWCCA 67
Hearing dates: 14 April 2025
Date of orders: 12 May 2025
Decision date: 12 May 2025
Before: Hamill J at [1]
Chen J at [19]
McNaughton J at [182]
Decision:
(1) Extend the time for the filing of the notice of appeal to 21 December 2024.
(2) Grant leave to appeal.
(3) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of six sexual offences – whether it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt on all the evidence – whether the apparently ‘consistent’ evidence from the applicant should have been preferred by the jury – where knowledge of consent was the issue at trial – where the applicant sent suggestive and unrelenting messages to the complainant before and after the offending – where the complainant was affected by prescription medication and alcohol – where the complainant had no memory of the offending – where the complainant had established her ‘boundaries’ – leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Quinn v R [2023] NSWCCA 229
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The King v ZT [2025] HCA 9
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: Matthew Withers (Applicant)
Crown (Respondent)
Representation:
Counsel:
A Moutasallem (Applicant)
C Curtis (Respondent)
Solicitors:
Advocate Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/00076262
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of the name of the complainant or any matter that could identify them is prohibited.
Decision under appeal

Court or tribunal:

District Court of New South Wales at Newcastle

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

27 March 2023

Before:

Harris DCJ

File Number(s):

2020/00076262

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 27 March 2023, a jury found the applicant guilty of two counts of sexual touching without consent, contrary to s 61KC(a) of the Crimes Act 1900 (NSW), and four counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act. These counts all involved offending against the complainant on the morning of 12 February 2020 at her home and whilst she was significantly impaired, having consumed a combination of prescription medication and alcohol. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Withers v The King

Details

AGLC: Withers v The King [2025] NSWCCA 67
Case: [2025] NSWCCA 67
Decision Date: 12 May 2025

CaseChat Overview and Summary

The appellant, Withers, appealed against his conviction on six counts of sexual offences, arguing that the verdict was unreasonable. The case was heard by the High Court of Australia. The central issue in the appeal was whether the jury was legally entitled to be satisfied beyond reasonable doubt of the appellant's guilt on all the evidence presented. The appeal also considered whether the jury should have preferred the evidence of the appellant, who claimed the encounters were consensual, over that of the complainant, who had no memory of the events due to the effects of prescription medication and alcohol. The appellant's behaviour, including sending suggestive and relentless messages before and after the alleged offences, was a significant factor in the jury's consideration of consent.

The court examined the principles governing appeals against unreasonable verdicts, emphasising that the jury is the sole arbiter of facts and their credibility. The court noted that the evidence suggested the appellant's behaviour was coercive, and the complainant's established boundaries were disregarded. The court also highlighted the complainant's lack of memory and the appellant's continued communication despite her resistance. The High Court concluded that, given the evidence, it was open to the jury to find the appellant guilty beyond reasonable doubt. The appeal was dismissed, and leave to appeal was granted.

In its judgment, the court confirmed that the jury's role in assessing the credibility of witnesses and the facts of the case is paramount. The court found that the jury's verdict was not unreasonable, as it was supported by the evidence presented. The court underscored the importance of the complainant's established boundaries and the appellant's disregard for them, which contributed to the jury's conclusion. The final orders of the court dismissed the appeal and confirmed the original conviction.

Orders