Smee v R [2024] NSWCCA 121

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Smee v R [2024] NSWCCA 121 Hearing dates: 8 July 2024 Date of orders: 15 July 2024 Decision date: 15 July 2024 Before: Mitchelmore JA at [1]; Kirk JA at [2]; Davies J at [38] Decision: (1) Grant leave to appeal, to the extent necessary. (2) Appeal upheld. (3) Quash the applicant's conviction on count 2, with a new trial to be had. (4) List the matter for arraignment in the District Court on Friday 19 July 2024 or as otherwise directed by that Court. Catchwords: CRIME – Sexual offences – Sexual assault – Consent – Section 61HE of the Crimes Act 1900 (NSW) – Relevance of complainant's substantial intoxication to issue of consent – Confusing drafting of statutory provision – Whether no free and voluntary agreement taking account of all circumstances – Not necessary to show what was said and done indicating consent was caused by intoxication APPEALS – From jury verdict – Misdirection – Real chance that the misdirections could have affected the jury verdict – Miscarriage of justice established Legislation Cited: Crimes Act 1900 (NSW), ss 61HA (historical version 1 January 2008 to 1 December 2018), 61HE (historical version 1 December 2018 to 31 May 2022), 61J(1) Crimes Amendment (Consent—Sexual Assault Offences) Act 2007 (NSW) Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) Supreme Court (Criminal Appeal) Rules 2021 (NSW) Cases Cited: Attwater v R [2021] NSWCCA 17 Beattie v R [2020] NSWCCA 334; (2020) 287 A Crim R 287 Cliff v R [2023] NSWCCA 15 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 Irmak v R [2021] NSWCCA 178 Pandamooz v R [2023] NSWCCA 221 Tabbah v R [2017] NSWCCA 55 Texts Cited: Criminal Trial Courts Bench Book, "Sexual intercourse without consent – until 31 May 2022" New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018 New South Wales Legislative Council, Parliamentary Debates (Hansard), 7 November 2007 Category: Principal judgment Parties: Jayden Smee (Applicant) Crown (Respondent) Representation: Counsel: A Chhabra (Applicant) E Jones (Crown)