Where the Crown case for sexual assault is put solely on the basis that the complainant was asleep or unconscious, evidence of the complainant's extreme intoxication, inability to walk independently, flashbacks of non-consensual conduct, and corroboration from the accused's own evidence can be sufficient for a jury to be satisfied beyond reasonable doubt of that element. Defence counsel's failure to object to directions may be explicable as a rational forensic decision to avoid the Crown putting an alternative case of non-consent based on intoxication under s 61HE(8) of the Crimes Act 1900 (NSW), and will not constitute a miscarriage of justice.
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