Sawyer v R [2020] NSWCCA 179

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sawyer v R [2020] NSWCCA 179 Hearing dates: 26 June 2020 Decision date: 31 July 2020 Before: Hoeben CJ at CL at [1]; Fagan J at [75]; Cavanagh J at [81] Decision: (1) Leave to appeal against conviction is granted. (2) The appeal against conviction is dismissed. Catchwords: CRIMINAL LAW – conviction appeal – one count of sexual intercourse without consent – New Year's Eve party – heavy alcohol consumption and cocaine use – whether complainant consented the only issue – Crown case that complainant asleep when intercourse commenced – defence case that complainant was an active and willing participant – gaps in complainant's memory as a result of alcohol and cocaine ingestion – whether open to jury to find beyond reasonable doubt that there was lack of consent – appeal dismissed. Legislation Cited: Crimes Act 1900 (NSW) – ss 61HE(5)(b), 61I Cases Cited: Fennell v The Queen (2019) 93 ALJR 1219; [2019] HCA 37 M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Pell v The Queen [2020] HCA 12 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Category: Principal judgment Parties: Matthew Sawyer – Applicant Regina – Respondent Crown Representation: Counsel: S Littlemore QC – Applicant E Wilkins SC – Respondent Crown