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
Category: Principal judgment Parties: Matthew Withers (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
A Moutasallem (Applicant)
C Curtis (Respondent)
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…
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- AGLC
- Withers v The King [2025] NSWCCA 67
- Case
- [2025] NSWCCA 67
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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