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Court of Criminal Appeal 2 December 2015

El-Ali v R

[2015] NSWCCA 300

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER VERDICT UNREASONABLE VERDICT WELL OPEN NO ERROR ESTABLISHED APPEAL DISMISSED CRIMINAL LAW

Citation: El-Ali v R [2015] NSWCCA 300
Court: NSW Court of Criminal Appeal
Date: 2 December 2015
Judge(s): Ward JA; Adams J; R A Hulme J (reasons by R A Hulme J)

Background

The appellant was convicted by a jury in 2012 of sexual intercourse without consent in circumstances of aggravation under s 61J(1) of the Crimes Act 1900 (NSW). The victim was 13 years old at the time of the offence. The appellant was sentenced to nine years' imprisonment with a non-parole period of six years.

The Crown's case centred on events at a motel where the appellant, then aged 34, took the complainant and her sister, supplied them with alcohol, and then sexually assaulted the complainant. The Crown also relied on tendency evidence from several other women, all teenagers at the relevant times, who gave evidence that the appellant had groomed and in some cases sexually assaulted them.

The appellant denied knowing the complainant well, denied taking her to a motel, denied supplying alcohol, and denied having sexual intercourse with her or any underage girl. He disputed all of the tendency evidence. He sought to appeal both his conviction and his sentence.

  • Whether the jury's guilty verdict was unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the trial judge erred in admitting tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW), specifically in concluding without sufficient analysis that the risk of improper jury use would be small if standard directions were given
  • Whether the trial judge erred in failing to provide reasons when refusing an application to discharge the jury
  • Whether the trial judge erred in treating the presence of another adult in the motel room as a sentencing aggravation

Decision

Ground 1: Unreasonable verdict
The Court granted leave to appeal on the unreasonable verdict ground but ultimately rejected it. The complainant's evidence was assessed as credible and consistent in its essential respects, with any inconsistencies being explicable given her age and the circumstances. The jury's verdict was well open on the evidence.

Ground 3: Tendency evidence directions
The appellant argued that the trial judge failed to adequately analyse, as required by s 101 of the Evidence Act 1995, whether the probative value of the tendency evidence substantially outweighed the risk of unfair prejudice. The Court rejected this ground, finding that the trial judge's reasons, read as a whole, disclosed a proper exercise of the balancing function. The reference to "usual directions" was considered in context and did not demonstrate error.

Ground 5: Failure to give reasons for refusing jury discharge
The appellant contended that the trial judge failed to provide reasons when refusing to discharge the jury during the trial. The Court rejected this ground, finding no error that would have affected the outcome. The circumstances did not require elaborate reasons, and no substantial miscarriage of justice was demonstrated.

Sentence: Presence of another person as aggravation
The sole sentencing ground was that the trial judge wrongly treated the presence of Dean Boyd in the motel room as aggravating the offence. The Court rejected this argument. Evidence established that Boyd was present in the room throughout the relevant period and there was no evidence he was unconscious or asleep. His presence, capable of being observed by him, exacerbated the humiliation suffered by the complainant. Leave to appeal against sentence was refused.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence refused.

Key Takeaways

  • A guilty verdict will not be disturbed as unreasonable merely because a complainant's account contained minor inconsistencies, provided those inconsistencies were explicable and the verdict remained one open to the jury on the whole of the evidence.
  • Under s 101 of the Evidence Act 1995 (NSW), a trial judge's balancing of probative value against prejudicial effect must be undertaken with adequate analysis, but reasons need not be exhaustive; the Court of Criminal Appeal will read the sentencing judge's reasons as a whole rather than in isolation.
  • No error was established in a refusal to discharge the jury where the circumstances did not demand extensive reasons and no substantial miscarriage of justice could be demonstrated.
  • The presence of another conscious adult in the room during a sexual assault can properly be treated as a sentencing aggravation on the basis that it exacerbated the humiliation suffered by the victim, even where there is no direct evidence that the person witnessed the assault.
  • In dismissing both the conviction appeal and the leave application for sentence, the Court of Criminal Appeal confirmed that each of the three conviction grounds and the sole sentencing ground lacked merit on the facts and the law as applied in this case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 61J
- Criminal Appeal Act 1912 (NSW) ss 5F, 6(1)
- Criminal Procedure Act 1986 (NSW) Ch 6 Pt 5 Div 3
- Evidence Act 1995 (NSW) ss 97, 101

Cases
- Agius v R [2015] NSWCCA 200
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- Evans v R [2006] NSWCCA 277; 164 A Crim R 489
- Harris v R [2005] NSWCCA 432; 158 A Crim R 454
- Kilby v The Queen [1973] HCA 30; 129 CLR 460
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451
- R v PWD [2010] NSWCCA 209; 205 A Crim R 75
- RH v R [2014] NSWCCA 71
- Saoud v R [2014] NSWCCA 136
- Shamoun v R [2015] NSWCCA 246
- Sokolowskyj v R [2014] NSWCCA 55