Citation: Ayoub v R [2012] NSWCCA 190
Court: NSW Court of Criminal Appeal
Date: 4 September 2012
Judge(s): McClellan CJ at CL (principal judgment); Johnson J and Price J (agreeing)
Background
The applicant was convicted by a jury on four counts: two sexual offences against two complainants (CA and DP) arising from events at a motel in Ashfield on 1 June 2008, and two counts of attempting to pervert the course of justice. The sexual offences involved allegations that the applicant assaulted CA in a motel bathroom while attempting to compel a sexual act, and separately compelled DP to perform oral sex through fear. The perversion of justice counts arose from the applicant later pressuring each complainant to withdraw her allegations.
The applicant received an overall sentence of four years and six months imprisonment with a non-parole period of three years. He sought leave to appeal his conviction on the ground that the prosecution had failed to disclose an audio recording of a conversation between a third party (SB) and the complainant CA, made on 4 September 2008. At the hearing, the applicant also sought to add a second ground based on that same recording as "fresh evidence."
The audio recording had been stored on the applicant's own mobile telephone. It was not located until after the trial, when the applicant's legal representatives examined the phone.
Legal Issues
- Whether the prosecution's failure to disclose the audio recording constituted a failure to discharge its disclosure obligations, giving rise to a miscarriage of justice.
- Whether the audio recording and related evidence from CA (set out in a post-trial affidavit) constituted "fresh evidence" capable of grounding a successful appeal against conviction.
- Whether, even if the recording was admissible as fresh evidence, it would have produced a different verdict.
Decision
On the first ground, the Court found no failure by the prosecution to disclose. The audio recording was stored on the applicant's own mobile phone, and the police were unaware of its existence. A prosecution disclosure obligation cannot arise in respect of material the police do not know exists. There was accordingly no failure, and no miscarriage of justice on this basis.
On the second ground, the Court found that the audio recording did not qualify as "fresh evidence." The test for fresh evidence requires, among other things, that the evidence could not reasonably have been discovered before or during trial. Because the recording was located on the applicant's own phone, it was always accessible to the applicant or his legal representatives. Evidence within the applicant's own possession or reach does not satisfy the freshness requirement.
McClellan CJ at CL also assessed whether, even if the recording were treated as fresh evidence, it would have produced a different result. His Honour found it would not. The recording disclosed some inconsistencies in CA's account, but those inconsistencies were explained by CA in her post-trial affidavit, which the Court found credible. The inconsistencies were more likely the product of mistaken recollection than deliberate deception, and a jury would likely have accepted CA's account.
Price J added that CA had already been cross-examined at trial on two video recordings, and the jury plainly accepted her explanations. The physical evidence, including injuries consistent with the applicant's distinctive Dolce and Gabbana ring, remained a significant obstacle to any denial of impropriety. The audio recording would neither have undermined CA's credibility before a properly instructed jury nor have shifted the verdict.
Orders Made
- Leave to appeal against conviction granted, but the appeal dismissed.
Key Takeaways
- A prosecution disclosure obligation does not extend to evidence the police do not know exists. Where investigators are unaware of material, no duty to disclose arises and its non-production does not constitute a failure.
- Evidence does not qualify as "fresh" for appeal purposes where it was stored on the applicant's own mobile phone and was accessible to the applicant and his legal representatives throughout the proceedings.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the relevant inquiry for fresh evidence is not merely whether the evidence was in fact discovered after trial, but whether it could reasonably have been discovered earlier.
- Sufficient evidence of guilt existed independently of the contested recording, including injuries to a complainant consistent with the shape of a distinctive ring found at the applicant's home, which significantly limited any impact the recording could have had on the verdict.
- Where an applicant cannot establish that fresh evidence would possibly have caused the jury to reach a different conclusion, no miscarriage of justice is made out, and leave to amend the notice of appeal will be refused.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61I, 61K(a), 319
Cases
- Grey v R [2001] HCA 65; (2001) 75 ALJR 1708
- Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510