Ewen v R [2015] NSWCCA 117

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ewen v R [2015] NSWCCA 117 Hearing dates: 9 February 2015 Decision date: 27 May 2015 Before: Basten JA at [1]; Simpson J at [38]; Davies J at [238] Decision: (1) Appeal against conviction dismissed;

(2) Leave granted to appeal against sentence;

(3) Appeal against sentence dismissed. Catchwords: APPEAL - conviction - sexual intercourse without consent, s 61I Crimes Act 1900 (NSW) - trial by judge alone; Criminal Procedure Act 1986 (NSW), s 133 - obligation to state relevant principles of law - whether explicit reference need be made to presumption of innocence - principle of presumption of innocence is not separate to or distinct from the onus and standard of proof

APPEAL - conviction - whether trial judge required to give "Murray direction" - uncorroborated evidence of the complainant of commission of crime - R v Murray (1987) 11 NSWLR 12; Longman v The Queen [1989] HCA 60; Crofts v The Queen [1996] HCA 22 - Criminal Procedure Act 1986 (NSW), s 294AA - giving "Murray direction" prohibited when evidential issues based solely on absence of corroboration of complainant

APPEAL - conviction - whether trial judge erred in failing to give warning under Evidence Act 1995 (NSW), s 165(1)(c) - whether reliability of complainant's evidence affected by intoxication - no request for warning made - intoxication not in issue at trial

APPEAL - conviction – whether error in failing to direct that evidence of flight as consciousness of guilt not applicable - Edwards v The Queen [1993] HCA 63 - trial judge made no such inference