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Court of Criminal Appeal 20 May 2015

Taleb v R

[2015] NSWCCA 105

Sexual offences
CRIMINAL LAW SEXUAL INTERCOURSE WITHOUT CONSENT INDECENT ASSAULT MULTIPLE CHARGES FROM SAME INCIDENT PRE TRIAL RULINGS

Citation: Taleb v R [2015] NSWCCA 105
Court: Court of Criminal Appeal, NSW
Date: 20 May 2015
Judge(s): Price J, Davies J, Schmidt J

Background

The appellant was tried before Judge Huggett DCJ and a jury in September 2013 on six counts arising from a single incident on 14 April 2012. The counts included four charges of indecent assault, one charge of sexual intercourse without consent, and one charge of committing an act of indecency. The alleged offending occurred during a late-night drive with the complainant, a 17-year-old woman, at a national park and subsequently in the back seat of a car.

The complainant gave evidence that the appellant kissed and sucked her neck and breast without consent, causing bruising, and then inserted a finger into her vagina while she protested and struggled. The appellant denied knowing the complainant or attending the location, but text messages recovered from his phone contradicted that account. The jury convicted him on three of the six counts (counts 1, 4 and 5) and acquitted him on the remaining three (counts 2, 3 and 6).

Following conviction, the appellant was sentenced to a total effective sentence with a three-year non-parole period for the most serious offence (sexual intercourse without consent), with concurrent fixed terms for the two indecent assaults. He appealed against both conviction and sentence.

  • Whether the trial judge erred by excluding cross-examination of the complainant, a forensic witness, and the examining doctor about male DNA found in forensic samples, prior sexual activity, and text messages indicating earlier sexual contact or experience
  • Whether the verdicts were unreasonable or could not be supported on the evidence, including whether the partial acquittals and partial convictions were inconsistent
  • Whether the sentence imposed was manifestly excessive

Decision

Ground 1: Exclusion of cross-examination and prior sexual activity

The central legislative question concerned the proper construction of s 293(4)(c) of the Criminal Procedure Act 1986 (NSW), which permits cross-examination about a complainant's prior sexual activity where that activity occurred "at or about the time of" the alleged offence and is connected to it. The appellant argued that the presence of male DNA in forensic samples, and text messages suggesting prior sexual contact, should have been the subject of cross-examination under this provision. The Court held that the trial judge had correctly construed and applied s 293(4)(c). The material in question did not meet the statutory threshold: there was insufficient basis to conclude the alleged prior sexual activity occurred at or about the time of the offending, or that it was sufficiently connected to the charges. No error was established on this ground.

Ground 2: Unreasonable verdict and inconsistency

The appellant contended that the jury's partial verdicts were internally inconsistent and that conviction on counts 1, 4 and 5 could not be reconciled with acquittal on counts 2, 3 and 6. The Court rejected this argument. The jury was entitled to assess each count individually on its own evidence, and the verdicts were not logically inconsistent. The Court also found the convictions were reasonably open on the evidence as a whole, particularly given the complainant's account, the medical evidence of bruising and injury, and the contradiction between the appellant's denials and the phone records. Leave to appeal on this ground was granted, but the appeal was dismissed.

Ground 3: Manifestly excessive sentence

The Court reviewed the sentence of three years' non-parole period (with an additional three-year term) for the s 61I offence, noting the maximum penalty was 14 years' imprisonment and the standard non-parole period was seven years. The Court observed that the offending was opportunistic but not at the lowest end of the scale: it involved two separate episodes on the same night, the complainant had clearly communicated her objection after the first episode, and the digital penetration continued for approximately ten minutes despite ongoing protest. Comparing the sentence to comparable cases, the Court found it was within the appropriate range and could not be characterised as unreasonable or plainly unjust under the test from Makarian v The Queen.

Orders Made

  • Leave to appeal granted in respect of Ground 2 (unreasonable verdict) and in respect of the sentence
  • Appeal dismissed

Key Takeaways

  • Under s 293(4)(c) of the Criminal Procedure Act 1986 (NSW), cross-examination about a complainant's prior sexual activity is only permissible where that activity occurred at or about the time of the alleged offence and is sufficiently connected to it; a mere forensic possibility does not satisfy the threshold.
  • Partial acquittals and partial convictions arising from a single incident are not automatically inconsistent; a jury may assess each count separately, and the verdicts will only be set aside if they cannot be rationally reconciled.
  • In dismissing the unreasonable verdict ground, the Court confirmed that the complainant's evidence, corroborated by medical observations of fresh injuries, was capable of supporting the convictions even where the jury acquitted on related counts.
  • A sentence for sexual intercourse without consent (s 61I, Crimes Act 1900) will not be manifestly excessive simply because it sits toward the higher end of a range drawn from comparable cases, provided it falls within the appropriate range given the objective circumstances.
  • The standard from Makarian v The Queen applies to sentence appeals: the sentence must be unreasonable or plainly unjust before appellate intervention is warranted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including s 61I (sexual intercourse without consent)
- Criminal Procedure Act 1986 (NSW), s 293(4)(c) (restriction on evidence of complainant's prior sexual experience)
- Criminal Appeal Act 1912 (NSW), s 7(1A)
- Evidence Act 1995 (NSW)
- Interpretation Act 1987 (NSW)

Cases
- Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
- Dimian v R (1995) 83 A Crim R 358
- JWM v R [2014] NSWCCA 248
- Poniris v R [2014] NSWCCA 100
- R v Burton [2013] NSWCCA 335
- Sulaeman v R [2013] NSWCCA 283
- Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195
- R v Morgan (1993) 30 NSWLR 543
- Rolfe v R [2007] NSWCCA 155
- Shepherd v R [2011] NSWCCA 245
- Spratt v Director of Public Prosecutions [2010] NSWSC 355
- R v Mosegaard [2005] NSWCCA 361
- R v Tubou [2001] NSWCCA 243
- R v Baden Cram [2008] NSWDC 225