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11
Court of Criminal Appeal 17 June 2005

Regina v Habib

[2005] NSWCCA 223

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: Regina v Habib [2005] NSWCCA 223
Court: New South Wales Court of Criminal Appeal
Date: 17 June 2005
Judge(s): McClellan AJA, Simpson J, Rothman J

Background

The appellant, a disability support worker, was convicted in the District Court of one count of sexual intercourse without consent under s 61I of the Crimes Act 1900. The complainant was a co-worker employed through the same agency, and both were on duty at a group home for residents with cerebral palsy when the alleged offence occurred on 15 November 2002.

The complainant gave evidence that after her shift ended she agreed to stay back briefly. She described being grabbed by the appellant on a couch, held in a bear hug, and subjected to non-consensual sexual intercourse while seated on his lap. The appellant pleaded not guilty and gave his own evidence at trial.

Following conviction, the appellant was sentenced to three years and six months imprisonment with a non-parole period of two years. He appealed to the Court of Criminal Appeal on two grounds.

  • Whether the verdict was unreasonable and could not be supported having regard to the evidence, in accordance with s 6(1) of the Criminal Appeal Act
  • Whether the trial judge erred in directing the jury with respect to lies

Decision

The Court allowed the appeal on the first ground, finding that the verdict was unreasonable and could not be supported by the evidence. The primary concern across all three judgments centred on the physical plausibility of the complainant's account, particularly as it related to the removal of clothing and the mechanics of sexual intercourse in the position she described.

McClellan AJA focused on the significant difficulty, if not impossibility, of the appellant removing the complainant's jeans and underwear while she sat on his lap in the manner she described, and then engaging in penetrative intercourse. The complainant's evidence about the position of her legs and knees during the act was found to create serious difficulties for the prosecution case.

Simpson J and Rothman J reached the same conclusion, though through somewhat different reasoning. Rothman J acknowledged that the evidence about the position of the complainant's knees and legs was equivocal, and that penile penetration might not have been impossible in every reading of her account. However, his Honour concluded that the complainant's evidence on these physical details was so uncertain and lacking in detail that, taken as a whole, it could never have satisfied a jury beyond reasonable doubt of the appellant's guilt. The applicable test was that drawn from M v The Queen (1994) 181 CLR 487, requiring an appellate court to ask whether it was open to the jury to be so satisfied.

All three judges agreed that even if the complainant's evidence were preferred and the appellant's account rejected, the evidence as a whole necessarily gave rise to a reasonable doubt. The second ground of appeal was not the basis of the Court's orders, and the judgment does not record separate resolution of that ground.

Orders Made

  • Appeal allowed
  • Conviction and sentence quashed
  • Verdict of acquittal entered

Key Takeaways

  • Under s 6(1) of the Criminal Appeal Act, an appellate court may set aside a conviction where the verdict is unreasonable or cannot be supported having regard to the evidence, even where the jury preferred the complainant's account over the accused's.
  • Physical implausibility in a complainant's account can, in some circumstances, be sufficient to render a verdict unreasonable, particularly where the implausibility goes to the central act alleged.
  • The test from M v The Queen (1994) 181 CLR 487 asks whether it was open to the jury to be satisfied beyond reasonable doubt of guilt; the Court of Criminal Appeal applied that test to conclude the jury's satisfaction here was not open on the evidence.
  • A verdict of acquittal, rather than a retrial, is the appropriate order where an appellate court finds the evidence as a whole could not support a conviction beyond reasonable doubt.
  • Evidentiary uncertainty or vagueness in a complainant's account about the physical circumstances of an alleged assault can be determinative at the appellate level, even where credibility findings in favour of the complainant are assumed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act (NSW), s 6(1)

Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Jones v The Queen (1997) 191 CLR 439
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Darling Island Stevedoring Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635
- R v R (1989) 18 NSWLR 74