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Court of Criminal Appeal 28 February 2020

Masri v R

[2020] NSWCCA 24

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION SEXUAL OFFENCES WHETHER COMPLAINANT CONSENTED WHERE NO DIRECTION SOUGHT

Citation: Masri v R [2020] NSWCCA 24
Court: NSW Court of Criminal Appeal
Date: 28 February 2020
Judges: Johnson J, Price J, Davies J (Davies J delivering the principal judgment)

Background

The appellant was charged with four counts of indecent assault, seven counts of sexual intercourse without consent, and one count of attempted sexual intercourse without consent, all arising from a single encounter with a woman he had met on Facebook. The alleged offences occurred over approximately one hour on 3 October 2017. The complainant gave evidence that she repeatedly told the appellant to stop and pushed him away throughout the encounter.

The jury returned verdicts of guilty on two counts of sexual intercourse without consent and one count of indecent assault. All three convictions related to the last three counts charged, which corresponded to the later stages of the encounter. The jury acquitted the appellant on the remaining nine counts. He was sentenced to an aggregate term of four years imprisonment with a non-parole period of two years and six months.

Central to the prosecution's case was a recorded telephone conversation between the complainant and the appellant, made approximately eight days after the incident at the direction of police. During those calls, the appellant made a number of statements that the court characterised as amounting to admissions about the complainant's lack of consent.

  • Whether the trial miscarried because the trial judge did not give the jury a direction on the appellant's good character (specifically, that he had no prior convictions).
  • Whether the omission of any request for such a direction by defence counsel was an inadvertent oversight or a deliberate tactical decision.
  • Whether the absence of the good character direction resulted in a real chance of acquittal being lost, such that a miscarriage of justice occurred.
  • Whether rule 4 of the Criminal Appeal Rules operated to preclude the appellant from relying on this ground of appeal.

Decision

Davies J (with Johnson J and Price J agreeing) refused leave to appeal. The court found that rule 4 of the Criminal Appeal Rules applied to bar the ground of appeal. That rule prevents an appellant from relying on a ground that was not raised at trial, absent a specific grant of leave. The threshold for leave is whether the omission caused a miscarriage of justice.

The court concluded that defence counsel's failure to seek a good character direction was not an inadvertent oversight. Prior to closing addresses, there had been extensive debate at trial about character evidence. Defence counsel, when asked by the trial judge to identify matters requiring directions, identified several topics but made no mention of a good character direction. The court found it tolerably clear that the omission was a deliberate tactical decision, likely taken on the appellant's own instructions, given the damaging nature of his cross-examination.

The court also found that the appellant had not established a real chance of acquittal being lost. The case was not simply one of conflicting accounts. The telephone intercept contained material that the court characterised as admissions of recklessness as to consent. The significance of that evidence was underscored by the jury's own distinctions: acquittals on counts one through nine, but convictions on counts ten through twelve, the counts most directly addressed by the recorded conversations.

Davies J held that the only available good character direction would have been limited to the absence of prior convictions and its relevance to credibility and propensity. In light of the cross-examination, the closing address by defence counsel, and the admissions in the recorded calls, such a direction was likely to have made no difference to the outcome.

Orders Made

  • Leave to appeal against conviction refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where defence counsel's failure to seek a good character direction reflects a deliberate tactical choice rather than inadvertence, rule 4 of the Criminal Appeal Rules operates to preclude reliance on that omission as a ground of appeal.

  • A finding that an omission was "tactical" rather than inadvertent is supported where the record shows extensive prior debate on the relevant topic and defence counsel had been expressly invited to identify directions but did not raise the issue.

  • Under the miscarriage of justice test, an appellant must establish a lost chance of acquittal that was real and fairly open, not merely theoretical. The strength of other evidence, including recorded admissions, is directly relevant to that assessment.

  • In dismissing the appeal, the court emphasised that the jury's own verdict pattern, acquitting on nine counts and convicting on three, itself demonstrated that the telephone intercept provided a sufficient independent basis for the convictions.

  • A good character direction confined to the absence of prior convictions carries limited weight where cross-examination has significantly damaged the accused's credibility and where independent admissions exist in the record.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I (sexual intercourse without consent), 61L (indecent assault)
- Criminal Appeal Rules, r 4

Cases
- ARS v R [2011] NSWCCA 266
- Brown v R [2019] NSWCCA 269
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- R v Stalder [1981] 2 NSWLR 9
- Simic v The Queen (1980) 144 CLR 319
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46