MITCHELL, Malcolm v R [2008] NSWCCA 275

New South Wales Court of Criminal Appeal

CITATION: MITCHELL, Malcolm v R [2008] NSWCCA 275

HEARING DATE(S): 10 October 2008

JUDGMENT DATE: 21 November 2008

JUDGMENT OF: Hodgson JA at 1; Kirby J at 41; Hislop J at 42

DECISION: Appeal against conviction dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Aggravated sexual assault – Evidence that complainant had drunk substantial quantities of alcohol – Whether warning pursuant to s 165 of the Evidence Act 1995 should have been given – Telephone intercepts in which the appellant asserted to the effect that what had happened was consensual and that he had been greatly intoxicated – Whether jury's verdict unreasonable.

LEGISLATION CITED: Evidence Act 1995 s 165

CATEGORY: Principal judgment

CASES CITED : R v Button [2002] NSWCCA 159, [2002] 129 CrimR 342 R v Murphy [2000] NSWCCA 297

PARTIES: Malcolm MITCHELL (Appellant) Regina (Respondent)

FILE NUMBER(S): CCA 2007/3084

COUNSEL: D DALTON SC (Appellant) P M MILLER (Respondent)

SOLICITORS: Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1076

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 14 June 2007

IN THE COURT OF CRIMINAL APPEAL CCA 2007/3084

HODGSON JA KIRBY J HISLOP J

21 NOVEMBER 2008 Malcolm MITCHELL v R Judgment 1 HODGSON JA: The appellant was tried before his Honour Sorby DCJ and a jury from 21 February 2007 to 1 March 2007 upon the following two counts: (1) On 21 November 2004 he did have sexual intercourse with [the complainant] without consent knowing that he was not consenting in circumstances of aggravation, namely that immediately before he maliciously inflicted actual bodily harm on [the complainant] (contrary to s 61J(i) Crimes Act 1900); and (2) On 21 November 2004 he did maliciously damage the property of [the complainant], namely a statue (contrary to s 195(a) Crimes Act 1900). 2 The appellant was convicted on both counts; and he was sentenced on the aggravated sexual assault matter to imprisonment for a period of eight and half years with a non-parole period of six years, and on the malicious damage matter for a period of twelve months, to be served concurrently. 3 The appellant appeals against his conviction.