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Court of Criminal Appeal 18 June 2020

Alharbi v R

[2020] NSWCCA 130

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT INDECENT ASSAULT TWO COMPLAINANTS CONVICTION FOLLOWING TRIAL

Citation: Alharbi v R [2020] NSWCCA 130
Court: Court of Criminal Appeal, New South Wales
Date: 18 June 2020
Judge(s): Hoeben CJ at CL, Harrison J, Wilson J (judgment delivered by Wilson J)

Background

The appellant was convicted in the District Court of New South Wales following a jury trial on four counts of indecent assault and one count of sexual assault. The offences arose from a single evening in December 2017, when the appellant met two young female tourists at Central Station in Sydney after contacting one of them through a travel accommodation app. The group spent the evening together before the appellant paid for a hotel room.

The Crown case was that, once inside the hotel room, the appellant sexually assaulted both women. The four indecent assault counts related to one complainant (Ms Y); the sexual assault count related to the second complainant (Ms V). The appellant was sentenced to an aggregate term of two years imprisonment with a non-parole period of 15 months.

The appellant sought leave to appeal against his convictions on three grounds, challenging the adequacy of the trial judge's jury directions, the balance of the summing-up, and the reasonableness of the verdicts.

  • Whether the trial judge erred by failing to give, or adequately give, a direction warning the jury against using evidence relating to one complainant as proof of guilt on counts concerning the other complainant (commonly called a "Mitchell direction")
  • Whether the trial judge's summing-up was unbalanced because it gave insufficient weight to inconsistencies between the two complainants' evidence, particularly on the question of consent
  • Whether the verdicts were unreasonable or unsupported by the evidence under s 6 of the Criminal Appeal Act 1912 (NSW)

Decision

Ground 1: Mitchell direction. Because the Mitchell direction ground was not raised at trial, rule 4 of the Criminal Appeal Rules applied and leave was required. The Court refused leave to advance this ground. The Court's reasoning on this point is brief in the judgment, with Wilson J focusing her substantive analysis on the remaining grounds.

Ground 2: Balance of the summing-up. Leave was also refused on this ground. Again, rule 4 applied because the issue had not been raised at trial. The Court did not accept that the trial judge failed to give adequate attention to the inconsistencies in the complainants' evidence.

Ground 3: Unreasonable verdicts. Leave was granted to advance this ground, but the Court dismissed it. Wilson J examined the key inconsistency relied upon by the appellant: a brief exchange between the two complainants about a kiss. Ms Y gave evidence that Ms V said the kiss was "okay", while Ms V denied having consented to the kiss. Wilson J found that both interpretations of the exchange were open on the evidence. One reading was that Ms V indicated she was okay with the kiss; another was that she was indicating she was okay after it. The significance of the exchange was therefore limited.

The Court found that the evidence supporting the verdicts was, overall, cogent. Both complainants made immediate complaints, both were observed by hotel staff to be distressed, and the accounts each complainant gave were mutually corroborating on the broader narrative of the evening. The jury was well placed to assess the complainants' credibility, enjoying an advantage over the appellate court in that regard. The verdicts were properly open on the whole of the evidence.

Orders Made

  • Leave to advance grounds 1 and 2 refused
  • Leave to advance ground 3 granted
  • Appeal against conviction dismissed

Key Takeaways

  • A "Mitchell direction" (a warning to the jury against using evidence on counts relating to one complainant to prove guilt on counts relating to another complainant) is not automatically required in every multi-complainant trial; its absence will not necessarily ground a successful appeal, particularly where the issue was not raised at trial.
  • Where a ground of appeal was not raised at trial, rule 4 of the Criminal Appeal Rules applies and leave is required before the Court of Criminal Appeal will entertain it.
  • In assessing an unreasonable verdict ground, the Court of Criminal Appeal confirmed that juries hold a significant advantage over appellate courts in assessing witness credibility, and the appellate court will not intervene where verdicts were properly open on the totality of the evidence.
  • Ambiguous or equivocal evidence does not of itself establish that a verdict is unreasonable; where more than one interpretation of a piece of evidence is open, the jury is entitled to prefer one over the other.
  • Evidence of immediate complaint and observed distress, together with corroborating observations from third parties such as hotel staff, can support the cogency of complainant evidence in sexual assault proceedings.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW)

Cases
- Cook v R (2000) 22 WAR 67; 100 A Crim R 11
- Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
- R v Collins [2001] NSWCCA 386
- R v Markuleski 52 NSWLR 82; [2001] NSWCCA 290
- R v Mayberry [2000] NSWCCA 531
- R v Mitchell (Court of Criminal Appeal (NSW), 5 April 1995, unreported)
- R v RCK (Court of Criminal Appeal (NSW), 12 December 1995, unreported)
- R v Tripodina [1988] 35 A Crim R 183
- R v Williams (Court of Criminal Appeal (NSW), 10 October 1990, unreported)
- RRS v R [2013] NSWCCA 94; 231 A Crim R 168