AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 15 July 2022

Khan v R

[2022] NSWCCA 157

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION SEXUAL OFFENCES COMMITTED ON SIX YEAR OLD BOY IN NEIGHBOUR’S HOUSE

Citation: Khan v R [2022] NSWCCA 157
Court: Court of Criminal Appeal, New South Wales
Date: 15 July 2022
Judge(s): Price J at [1]; N Adams J at [9]; Ierace J at [189]

Background

The applicant was convicted by a jury of twelve on two counts of aggravated indecent assault (contrary to s 61M(2) of the Crimes Act 1900 (NSW)) against a six-year-old boy. The offences were alleged to have occurred between November 2013 and January 2014 in a bedroom of a neighbouring house where the applicant was residing at the time. The complainant, who is of Rohingya origin and had arrived in Australia only months earlier, did not disclose the assault to anyone until June 2019 when he confided in his sister.

The applicant was sentenced to an aggregate term of three years and two months' imprisonment, with a non-parole period of eighteen months. He appealed against his conviction on a single ground: that the verdicts were unreasonable and could not be supported by the evidence. The sole focus of the appeal was the quality of the complainant's identification (or recognition) of the applicant as the perpetrator.

  • Whether the jury's verdicts were unreasonable or could not be supported by the evidence, pursuant to s 5(1)(b) of the Criminal Appeals Act 1912 (NSW)
  • Whether the complainant's identification (or recognition) evidence was of sufficient quality to sustain the convictions, given a series of identified deficiencies
  • Whether, on an independent assessment of the whole of the evidence, the jury acting rationally ought to have entertained a reasonable doubt as to whether the applicant was the perpetrator

Decision

The Court of Criminal Appeal, with N Adams J delivering the principal judgment and Price J and Ierace J agreeing, allowed the appeal and quashed the convictions. The central issue at trial had been whether the complainant reliably identified the applicant as the person who assaulted him.

N Adams J identified a series of cumulative problems with the identification evidence. The complainant had described the perpetrator as a friend of his cousin Aziz who had accompanied them on outings, but Aziz denied knowing the applicant. A photographic identification made by the complainant was considered potentially compromised by the circumstances in which it took place. Family witnesses had discussed their accounts with one another before giving evidence, raising concerns about contamination. Additionally, the complainant's physical description of the perpetrator was inconsistent with evidence at trial about the applicant's appearance at the relevant time.

N Adams J accepted that it was well open to the jury to find that the complainant had been indecently assaulted. However, her Honour concluded that the jury could not rationally have been satisfied beyond reasonable doubt that the applicant was the perpetrator. Importantly, the majority of the difficulties with the identification evidence did not turn on the complainant's credibility; most were not in dispute on appeal. The advantage a jury holds in seeing and hearing witnesses could not overcome deficiencies that were largely objective and structural in nature.

All three judges independently assessed the evidence and reached the same conclusion. Price J noted that the jury's advantage in observing the pre-recorded evidence of the complainant over approximately a day and a half did not resolve the cumulative difficulties with identification. Ierace J agreed that those difficulties, viewed in the context of the evidence as a whole, established that a rational jury ought to have entertained a reasonable doubt.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Convictions of the applicant quashed
  • Verdicts of acquittal entered

Key Takeaways

  • The Court of Criminal Appeal confirmed that, in assessing an unreasonable verdict ground, an appellate court must independently examine whether the jury, acting rationally, ought to have entertained a reasonable doubt as to guilt, applying the principles in M v The Queen and Pell v The Queen.
  • A jury's advantage in seeing and hearing witnesses, including pre-recorded evidence, does not automatically overcome structural or objective deficiencies in identification evidence that are largely undisputed on appeal.
  • Where multiple independent problems with identification evidence accumulate, including contamination risks from witnesses communicating with each other, a compromised photographic identification procedure, and a physical description inconsistent with trial evidence, their combined effect may render a conviction unreasonable even if the complainant is accepted as generally credible.
  • The Court distinguished between the finding that an assault occurred (which remained open to the jury) and the separate, unresolved question of whether the applicant was the perpetrator, demonstrating that an acquittal on unreasonableness grounds does not necessarily require disbelief of the complainant's account of the offending itself.
  • A real possibility that the complainant had conflated two different individuals sharing the same nickname was a significant factor in finding that the identification evidence could not support the convictions beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
- Criminal Appeals Act 1912 (NSW), s 5(1)(b)

Cases:
- Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17
- Domican v The Queen (1992) 173 CLR 55; [1992] HCA 13
- Kassab (a pseudonym) v R [2021] NSWCCA 46
- Kees Langelaar v R [2016] NSWCCA 143
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Penfold v R [2016] NSWCCA 101
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Blick [2000] NSWCCA 61; 111 A Crim R 326
- Sita v R [2022] NSWCCA 90
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- VP v R [2021] NSWCCA 11
- Wood v R [2012] NSWCCA 21