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2
Court of Criminal Appeal 2 July 1999

Regina v Khouzame & Saliba

[1999] NSWCCA 173

Also reported as (1999) 108 A Crim R 170
Sexual offences
CRIMINAL LAW PRACTICE & PROCEDURE DUPLICITY SEXUAL OFFENCES

Citation: Regina v Khouzame & Saliba [1999] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 2 July 1999
Judges: Ireland J, Kirby J, Bell J

Background

The two appellants were tried jointly in the District Court before Johnston DCJ on a charge of aggravated sexual assault under s 61J(1) of the Crimes Act 1900. The alleged aggravation was that the offence occurred in company. The complainant was a sixteen-year-old woman who alleged she was sexually assaulted in a park at Fairfield on 13 June 1995 while severely affected by alcohol.

The evidence at trial disclosed several discrete acts of sexual intercourse said to have taken place during the same incident, including vaginal intercourse, oral penetration, and penetration with a bottle. Each accused faced a single charge framed only in general terms, referring to sexual intercourse on the relevant date without specifying which act or acts were alleged.

Both appellants were convicted and sentenced to substantial terms of penal servitude. They appealed against both conviction and sentence.

  • Whether a single charge of sexual assault was duplicitous (that is, bad for duplicity) because the evidence disclosed multiple separate acts of sexual intercourse, each of which could independently have grounded a conviction
  • Whether the trial judge erred by failing to direct the jury that it must be unanimous as to which specific act of sexual intercourse constituted the offence charged
  • Whether the absence of a jury direction on intoxication, in the context of the accused's evidence, gave rise to a miscarriage of justice warranting leave to raise the ground on appeal

Decision

The Court (Kirby J, with Ireland J and Bell J agreeing) allowed the appeal on the ground of duplicity and the related failure to give an adequate unanimity direction. The evidence presented at trial identified at least three separate acts of sexual intercourse. Each act was capable of independently supporting a conviction for aggravated sexual assault, yet only one charge was brought in respect of all of them collectively.

The court found that where distinct acts of sexual intercourse are alleged, each should ordinarily be the subject of a separate charge. Charging multiple discrete acts within a single count is problematic because it risks a verdict that is not truly unanimous: some jurors may have been satisfied beyond reasonable doubt in relation to one act, while others were satisfied only in relation to a different act. Without a clear direction requiring unanimity as to the specific act founding the verdict, the conviction cannot safely stand.

The trial judge's failure to direct the jury that it needed to agree on which particular act of sexual intercourse was proved was therefore a material error. The court concluded this failure caused a miscarriage of justice sufficient to warrant quashing the convictions and ordering a new trial.

On the separate ground concerning intoxication, the court declined to grant leave. Although a direction on intoxication should have been given, the court found the appellants had not demonstrated that its absence deprived them of a real chance of acquittal, particularly given the nature of the evidence about intoxication in this case.

Orders Made

  • The appeals were allowed.
  • The convictions of both appellants were quashed, and the sentences in each case were set aside.
  • A new trial was ordered in respect of each appellant.

Key Takeaways

  • Where evidence at trial discloses multiple discrete acts of sexual intercourse, each act should ordinarily be charged separately rather than subsumed within a single count.
  • A conviction on a duplicitous charge carries the risk of a non-unanimous verdict, where different jurors may be persuaded by different acts, undermining the integrity of the verdict.
  • The Court of Criminal Appeal confirmed that a trial judge must direct the jury to reach unanimous agreement on which specific act of sexual intercourse grounds the charge where more than one such act is alleged.
  • Failing to give an intoxication direction does not automatically produce a miscarriage of justice. An appellant must demonstrate that the absence of the direction denied them a real chance of acquittal, and leave under the Court of Criminal Appeal Rules is required where no such direction was sought at trial.
  • In dismissing the intoxication ground, the court reaffirmed that the criminal appellate process is not available to raise, on a second attempt, issues that could and should have been raised at the original trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61H(1)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Workers Rehabilitation and Compensation Act 1986 (SA)

Cases Cited:
- R v Locchi (1991) 22 NSWLR 309
- S v The Queen (1989) 168 CLR 266
- Andrew Lapthorne (1989) 40 A Crim R 142
- Walsh v Tattersall (1996) 188 CLR 77
- R v Giam [1999] NSWCCA 53
- Mangos v DPP (Supreme Court, unreported, 21 July 1995)
- R v Jones (1997) 191 CLR 439
- R v Harris [1969] 1 WLR 745
- R v Whelan [1973] VR 268
- R v Slade (1982) 7 A Crim R 113
- R v Saraswati (1989) 18 NSWLR 143
- Hamzy (1994) 74 A Crim R 341
- Morrow & Flynn (1990) 48 A Crim R 232
- DPP v Merriman [1973] AC 584
- R v Blanch (CCA, unreported, 9 August 1994)
- R v Nickel (CCA, unreported, 16 November 1988)
- R v Fetineiai (CCA, unreported, 16 July 1993)