Day v R [2017] NSWCCA 192

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Day v R [2017] NSWCCA 192 Hearing dates: 19 May 2017 Date of orders: 11 August 2017 Decision date: 11 August 2017 Before: Johnson J at [1]; Rothman J at [120]; Lonergan J at [126] Decision: 1. The Applicant is granted leave to rely upon Ground 1 on the conviction appeal. 2. The Applicant is refused leave to rely upon Ground 5 on the conviction appeal. 3. Appeal against conviction is dismissed; 4. The Applicant is granted leave to appeal against sentence. 5. The appeal against sentence is dismissed. Catchwords: CRIMINAL LAW – appeal against conviction – offence of having sexual intercourse without consent contrary to s.61I Crimes Act 1900 – leave sought to contend that miscarriage of justice resulted from failure to direct jury concerning intoxication and claim of honest and reasonable but mistaken belief – reliance upon Queensland authority – jury properly directed in accordance with s.61HA and s.428D Crimes Act 1900 (NSW) – no error demonstrated – leave to rely upon this ground refused under Rule 4 Criminal Appeal Rules – whether verdict unreasonable – criticisms of aspects of Complainant's evidence – held that it was open to jury to be satisfied beyond reasonable doubt of Applicant's guilt – appeal against conviction dismissed

CRIMINAL LAW – appeal against sentence – Applicant sentenced to imprisonment for five years and nine months – non-parole period of three years with a balance term of two years and nine months – whether sentence was manifestly excessive – held sentence not manifestly excessive – appeal against sentence dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Crimes Amendment (Consent - Sexual Assault Offences) Act 2007 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Criminal Appeal Rules Cases Cited: Abdelmeseeh v R [2017] NSWCCA 312 Atai v R [2014] NSWCCA 210 Badans v R [2012] NSWCCA 97 Cowling v R [2015] NSWCCA 213 Dickson v R [2017] NSWCCA 78 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 DJB v R [2007] NSWCCA 209 GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25 Greenhalgh v R [2017] NSWCCA 94 Mills v R [2017] NSWCCA 87 Muldrock v The Queen (2011) 224 CLR 120; [2011] HCA 39 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Alcazar [2017] NSWCCA 51 R v Greenwood [2014] NSWCCA 64 R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338 R v JRB [2006] NSWCCA 371 R v Murray (1987) 11 NSWLR 12 R v O'Loughlin [2011] QCA 123 R v Petersen (2008) 6 DCLR(NSW) 283 Silva v R [2016] NSWCCA 284 Tabbah v R [2017] NSWCCA 55 The Queen v Baden-Clay [2016] 258 CLR 308; [2016] HCA 35 Tonari v R (2013) 237 A Crim R 490; [2013] NSWCCA 232 Texts Cited: --- Category: Principal judgment Parties: Paul Grahame Day (Applicant) Regina (Respondent) Representation: Counsel: Mr AJ Kimmins (Applicant) Mr SA Hughes (Respondent)