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Court of Criminal Appeal 6 May 2015

Elmowy v R

[2015] NSWCCA 85

Sexual offences
CRIMINAL LAW SEXUAL INTERCOURSE WITHOUT CONSENT APPEAL AGAINST CONVICTIONS WHETHER JURY VERDICTS UNREASONABLE S 6 CRIMINAL APPEAL ACT 1912 APPEAL DISMISSED

Citation: Elmowy v R [2015] NSWCCA 85
Court: Court of Criminal Appeal, New South Wales
Date: 6 May 2015
Judge(s): Macfarlan JA; Simpson J; Schmidt J

Background

The applicant was convicted in 2014 following a trial on two charges: sexual intercourse without consent occurring between 15 and 30 April 2013, and an attempted sexual intercourse without consent on 10 June 2013, both alleged to have occurred at a residential apartment in Bondi. The complainant and the applicant had been in a relationship since approximately 2010, which ended in mid-August 2012. After the formal relationship ended, they remained in intermittent contact and had occasional consensual sexual encounters until April 2013.

For the first count, the complainant gave evidence that the applicant, who had come to her apartment to collect belongings, pulled her onto the bed and had intercourse with her against her protests and while physically restraining her. For the second count, she described the applicant arriving unexpectedly at her door and attempting to penetrate her while she actively resisted, ultimately ejaculating on her after she prevented full penetration.

The applicant sought leave to appeal on the ground that the jury's verdicts were unreasonable, arguing among other things that the allegations were fabricated in the aftermath of a deteriorating relationship and that the complainant's evidence was unreliable.

  • Whether the jury's verdicts of guilty on both counts were unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether, on an independent assessment of the evidence for its sufficiency and quality, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt
  • Whether the Court of Criminal Appeal should view video recordings of the complainant's evidence on appeal, given that she required five breaks while giving her evidence-in-chief

Decision

The Court applied the test from SKA v The Queen (2011) 243 CLR 400, which requires the appellate court to make an independent assessment of the evidence, considering both sufficiency and quality, and to determine whether it was open to the jury to be satisfied beyond reasonable doubt of guilt. The "central question" under that test is whether the court itself is satisfied that the applicant was guilty.

Macfarlan JA, with whom Simpson J and Schmidt J agreed, concluded that the Crown had proved its case beyond reasonable doubt and that it was open to the jury to convict on both counts. His Honour examined the complainant's evidence in detail, including her accounts of both incidents, the evidence of witnesses to whom she made contemporaneous disclosures, and text message exchanges tendered at trial.

The applicant's case at trial had been that the intercourse the subject of count 1 was consensual and that the events underlying count 2 never occurred, and that the complainant had weaponised sexual allegations in the context of a broken relationship. The jury rejected that account and preferred the complainant's evidence. The Court of Criminal Appeal found no basis to disturb that conclusion.

On the question of whether to view the video recording of the complainant's evidence, all three judges declined to do so. The complainant's need for breaks during evidence-in-chief, without requiring breaks when being cross-examined about photographs, was insufficient to justify that course. Schmidt J applied the principle from Libke v The Queen (2007) 230 CLR 559, confirming that the relevant question is whether the jury must, as distinct from might, have entertained a doubt. On the evidence, no such necessity arose.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the appellate unreasonable verdict test requires an independent assessment of the evidence's sufficiency and quality, with the central question being whether the appellate court is itself satisfied of the applicant's guilt, following SKA v The Queen.
  • Under Libke v The Queen, the applicable standard when assessing whether a verdict was unreasonable is whether the jury must have entertained a doubt, not merely whether it might have done so.
  • A complainant's need for breaks while giving evidence-in-chief did not, on the facts here, require the appellate court to view the video recording of that evidence to properly assess the reasonableness of the verdict.
  • Contemporaneous disclosures made by a complainant to acquaintances and a work supervisor shortly after the alleged events formed part of the evidence the court assessed in determining whether the verdicts were open to the jury.
  • Prior consensual sexual contact between a complainant and an accused, and ongoing communication after a relationship ended, do not of themselves render a subsequent finding of non-consent unreasonable.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Evidence Act 1995 (NSW), s 66

Cases
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
- Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487