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Zurshig v R

Zurshig v R

Case [2021] NSWCCA 309 16 December 2021

Criminal Liability

Appeal

Miscarriage of Justice

Consent

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zurshig v R [2021] NSWCCA 309
Hearing dates: 6 December 2021
Decision date: 16 December 2021
Before: Basten JA at [1];
Adamson J at [9];
Wright J at [135]
Decision:
(1) Grant the applicant leave to appeal against his conviction.
(2) Dismiss the appeal.

Catchwords:
CRIME — Appeals — Appeal against conviction — leave to appeal granted — sexual intercourse without consent in circumstances where the victim had overdosed and was trying to get to hospital — whether Crown closing gave rise to a miscarriage of justice — consideration of principles governing the constraints on the Crown in closing — effect of Crown closing was that the applicant’s version was objectively improbable — defence closing sufficiently dealt with the Crown’s reliance on “perceived social mores and morals” — reference to the applicant being Mongolian was relevant to explain his limited English and ability to engage in meaningful discussion — applicant’s age relevant to the objective probability of consent — lack of “sexual appetite” relevant to objective probability of victim initiating physical conduct — Crown closing was not inappropriate — verdict was not unreasonable — complaint evidence, observations of professionals and CCTV footage assisted the Crown case on consent — open to the jury to consider that the objective probabilities favoured the Crown case and the applicant could not have believed that the victim was consenting — appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), s 61I
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), s 293A
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
FX v R; GX v R [2020] NSWCCA 189
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330
Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Onassis v Vergottis [1968] 2 Lloyds Rep 403
R v Birks (1990) 19 NSWLR 677
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Category: Principal judgment
Parties: Zorigoo Zurshig (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
C Curtis (Respondent)
Solicitors:
LY Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/250415
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

10 April 2020

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 Zurshig v R

Details

AGLC: Zurshig v R [2021] NSWCCA 309
Case: [2021] NSWCCA 309
Decision Date: 16 December 2021

CaseChat Overview and Summary

In the case of Zurshig v R, the applicant appealed against his conviction for sexual intercourse without consent under section 323A(2)(a) of the Crimes Act 1900 (NSW). The applicant was convicted following a jury trial in the District Court of New South Wales. The central dispute was whether the applicant had sexual intercourse with the victim, who had overdosed and was trying to get to hospital, without her consent. The applicant argued that the Crown closing gave rise to a miscarriage of justice, particularly by relying on perceived social mores and morals, and that the defence closing did not adequately address these points.

The legal issues before the court included whether the Crown’s closing remarks were inappropriate, and if so, whether they gave rise to a miscarriage of justice. The court also needed to consider whether the applicant's version of events was objectively improbable and whether the jury's verdict was unreasonable. Furthermore, the court examined whether the Crown’s reliance on social mores and morals was appropriate and if the defence adequately rebutted these points. The applicant contended that the Crown closing was improper and that his version of events was not objectively improbable. The court's task was to evaluate these arguments within the legal framework governing closing addresses and the standard of review for appeals against conviction.

The court determined that the Crown’s closing did not give rise to a miscarriage of justice. The court found that the applicant’s version of events was objectively improbable given the evidence, including the complainant's evidence, observations of professionals, and CCTV footage. The court held that the defence closing had sufficiently addressed the Crown’s reliance on perceived social mores and morals. The court also noted that references to the applicant's nationality and age, along with his limited English, were relevant to understanding his capacity to engage in meaningful discussion and the objective probability of consent. The court concluded that the jury was entitled to consider that the objective probabilities favoured the Crown’s case, and that the applicant could not have reasonably believed that the victim was consenting. The appeal was dismissed, and the conviction was upheld.

Orders