Mullins v R [2008] NSWCCA 302

New South Wales Court of Criminal Appeal

CITATION: Mullins v R [2008] NSWCCA 302

HEARING DATE(S): 2 December 2008

JUDGMENT DATE: 12 December 2008

JUDGMENT OF: Hodgson JA at 1; James J at 48; Price J at 49

DECISION: Appeal against conviction dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Sexual assault – Issues of consent and appellant's knowledge – Gaps in complainant's recollection – Whether open to jury to be satisfied beyond reasonable doubt that complainant did not consent and that appellant knew she did not consent.

LEGISLATION CITED: Evidence Act 1995 s 66 Criminal Appeal Act 1912 s 6(1)

CATEGORY: Principal judgment

CASES CITED : M v The Queen (1994) 181 CLR 487

PARTIES: Owen Jeffrey MULLINS (appellant) Regina (respondent)

FILE NUMBER(S): CCA 2008/0568

COUNSEL: J L GLISSAN QC (appellant) L WELLS (Crown)

SOLICITORS: Moneywise Legal Services Pty Limited (appellant) Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 07/11/0473

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

LOWER COURT DATE OF DECISION: 11 October 2007

IN THE COURT OF CRIMINAL APPEAL CCA 2008/0568 DC 07/11/0473

HODGSON JA JAMES J PRICE J

12 DECEMBER 2008 Owen Jeffrey MULLINS v REGINA Judgment 1 HODGSON JA: On 2 October 2007, the appellant pleaded not guilty to a charge that he on 26 August 2004 at Manly in the state of New South Wales did have sexual intercourse with [the complainant] without her consent and knowing that she was not consenting. 2 The appellant was tried before Charteris DCJ and a jury. It was accepted by the appellant that sexual intercourse had occurred between him and the complainant. The only issues at the trial were whether or not the complainant consented to the sexual intercourse and/or whether the appellant knew that she was not consenting or was reckless as to that matter. 3 On 11 October 2007, the jury returned a verdict of guilty. The appellant was sentenced on 25 January 2008 to a minimum period of imprisonment of one year and ten months, and an additional or parole period of one year and eight months. 4 The appellant appeals from his conviction.