Zurshig v R [2021] NSWCCA 309

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)