Citation: Khamis v R; Hussain v R [2018] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 29 June 2018
Judges: Gleeson JA; Fullerton J; Button J
Background
Two appellants were each convicted by a jury of one count of aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW), following events at a motel in February 2013. The alleged victim was 17 years old at the time. The two appellants, both aged 19, had met her at a shopping centre shortly before the events in question.
Each appellant was originally charged with four counts of aggravated sexual assault. The trial judge directed not guilty verdicts on two counts at the close of the Crown case, for want of evidence. The jury then returned not guilty verdicts on count 4 against both men, but guilty verdicts on count 1. Both were sentenced to imprisonment, and the relevant non-parole periods had expired by the time of the appeal.
The central disputed issues at trial were whether the complainant had consented to sexual intercourse and whether each appellant knew she was not consenting. There was no dispute that sexual intercourse had occurred.
Legal Issues
- Whether counts 1 and 2 were insufficiently particularised, causing the trial to miscarry
- Whether the guilty verdicts on count 1 were unreasonable or could not be supported by the evidence, specifically in respect of the elements of consent and knowledge of non-consent under s 61HA of the Crimes Act
- Whether the jury's not guilty verdicts on count 4 were inconsistent with the guilty verdicts on count 1, rendering those guilty verdicts unreasonable
Decision
Particularity ground: All three judges agreed this ground failed. The court found that counts 1 and 2 were adequately particularised in the circumstances of the trial.
Unreasonable verdict ground: This ground produced a split court. Gleeson JA would have dismissed both appeals, being unpersuaded that a reasonable doubt arose on the evidence regarding knowledge of non-consent. Fullerton J agreed with Gleeson JA in the result.
Button J, in dissent on the outcome, conducted a detailed review of the evidence and concluded that he personally experienced a reasonable doubt about whether the appellant Hussain knew the complainant was not consenting when he had sexual intercourse with her. His Honour applied the test from M v The Queen (1994) 181 CLR 487, which requires the appellate court to make its own assessment of whether a reasonable doubt exists, while allowing for the jury's advantage in assessing credibility. Button J was ultimately unpersuaded that this advantage resolved his doubt, particularly given the objective aspects of the evidence and the absence of clear proof about what occurred in the motel room.
Because the court was divided two to one in favour of dismissing the appeals, the convictions were not quashed. The proposed orders of Button J, which would have quashed both convictions and entered verdicts of acquittal, did not command a majority.
Inconsistent verdicts: The court did not uphold the argument that the not guilty verdicts on count 4 were logically inconsistent with the guilty verdicts on count 1 in a manner that rendered those convictions unreasonable.
Orders Made
The majority (Gleeson JA and Fullerton J) dismissed both appeals against conviction. The orders proposed by Button J, including quashing the convictions and entering acquittals, were not adopted.
[Orders for the majority outcome not fully reproduced in the provided text; Button J's dissenting proposed orders included: extension of time granted to Khamis; leave to appeal granted to both appellants; both convictions quashed; verdicts of acquittal entered.]
Key Takeaways
- A conviction for aggravated sexual assault under s 61J(1) requires proof that the accused had sexual intercourse with the complainant without consent and with knowledge of that non-consent, where "knowledge" under s 61HA(3) includes actual knowledge, recklessness, or having no reasonable grounds for believing the complainant consented.
- Under s 61HA(3)(c), the "no reasonable grounds" limb imposes an objective test: the question is whether the accused might have believed in all the circumstances that the complainant was consenting, and whether there were objectively reasonable grounds for that belief, as confirmed in Lazarus v R [2016] NSWCCA 52.
- Applying the M v The Queen standard on unreasonable verdict appeals, an appellate judge must make an independent assessment of the evidence and ask whether a reasonable doubt exists, while giving appropriate weight to the jury's advantage in evaluating witness credibility.
- The "in company" circumstance of aggravation under s 61J(2)(c) requires, as confirmed in FP v R [2012] NSWCCA 182, that a co-offender committed the relevant act without consent, that the other person shared a common purpose to that end, and that the other person was physically present in a way that afforded encouragement or operated to intimidate the complainant.
- Where appellate judges divide on whether a verdict is unreasonable, the majority position prevails: a dissenting judge's experience of reasonable doubt does not itself produce an acquittal on appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61H, 61HA, 61J
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), s 38
Cases:
- Black v The Queen (1993) 179 CLR 44
- FP v R [2012] NSWCCA 182
- Irwin v The Queen [2018] HCA 8
- Lazarus v R [2016] NSWCCA 52
- Libke v The Queen (2007) 230 CLR 559
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- PA v R [2015] NSWCCA 18
- R v Markuleski (2001) 52 NSWLR 82
- R v Murray (1987) 11 NSWLR 12
- SKA v The Queen (2011) 243 CLR 400
- W v R [2014] NSWCCA 110