Zurshig v R

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.