Citation: Tabbah v R [2017] NSWCCA 55
Court: NSW Court of Criminal Appeal
Date: 29 March 2017
Judge(s): Hoeben CJ at CL, Payne JA, Button J
Background
The appellant was a taxi driver convicted in the District Court of one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The offence was alleged to have occurred in the early hours of 19 August 2013, when the appellant drove a heavily intoxicated young woman in his cab and, according to the Crown case, had penile/vaginal intercourse with her at a Mosman service station without her free and voluntary agreement.
The complainant had consumed alcohol and cannabis throughout the evening and believed she had been given a substance without her knowledge at a hotel. CCTV footage, electronic taxi records, and the complainant's own evidence at trial painted a picture of severe intoxication. There was no dispute that intercourse occurred; the central issues at trial were consent and the appellant's knowledge of its absence.
The appellant was convicted by jury and sentenced to imprisonment. He sought leave to appeal against conviction on three grounds.
Legal Issues
- Whether the conviction was unreasonable or unable to be supported on the evidence (Ground 1)
- Whether the trial miscarried because the prosecutor's closing submissions framed the consent issue in terms of the complainant's incapacity to consent, without adequate correction by the trial judge in the summing-up (Ground 2)
- Whether the trial miscarried because the prosecutor's submissions framed the knowledge element in terms of the appellant's awareness that the complainant was unable to consent, and whether the trial judge's directions on the required state of mind were adequate (Ground 3)
Decision
Button J (with whom Hoeben CJ at CL and Payne JA agreed) dismissed all three grounds. On Ground 1, his Honour conducted a detailed review of the evidence and concluded the Crown case at trial was very strong. The complainant's account was corroborated by CCTV footage, electronic taxi records, her photographs of the driver's licence, the testimony of friends and other witnesses, and medical and forensic evidence. Far from the verdict being unreasonable, the court found it was well open to the jury to return a guilty verdict.
On Grounds 2 and 3, the court considered what the prosecutor had said in opening and closing addresses and the directions given by the trial judge in the summing-up. The court found that the appellant had not established that the trial miscarried. The trial judge's directions were examined against what the prosecutor had submitted, and no error warranting intervention was identified.
The court also addressed the significance of a piece of evidence concerning similarities between the complainant's alleged conduct toward the appellant and her conduct toward a second taxi driver later that night. Both men claimed the complainant had requested or agreed to an exchange of money for intimacy. Button J acknowledged this evidence had to be accepted as truthful and that it presented a matter squarely for the jury's assessment of credibility and consent. However, his Honour concluded that any exculpatory effect of that evidence was overwhelmed by the strength of the remaining Crown case.
Orders Made
- Leave to appeal against conviction granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a verdict supported by strong corroborating evidence, including CCTV footage, electronic records, and witness testimony, will not be set aside as unreasonable merely because some aspects of the complainant's account were subject to criticism at trial.
- A conviction for sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW) requires proof that the complainant did not consent and that the accused knew she was not consenting; the court examined how prosecutors must frame submissions on both elements to avoid misleading the jury.
- Where a prosecutor's submissions may have expressed a legal element imprecisely, the question for a conviction appeal is whether the trial as a whole miscarried, having regard to the trial judge's directions to the jury.
- Similarities between a complainant's conduct toward the accused and toward another person on the same night were treated as quintessentially a matter for jury evaluation, rather than grounds for appellate intervention.
- No error was established in the trial judge's summing-up sufficient to warrant the Court of Criminal Appeal disturbing the jury's verdict.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61HA, 61I
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), s 38
Cases:
- Henning v R (NSW Court of Criminal Appeal, 11 May 1990, unreported)
- [Decision Restricted] [2016] NSWCCA 52
- MG v R [2017] NSWCCA 14
- R v Kitchener (1993) 29 NSWLR 696