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Court of Criminal Appeal 31 October 2022

Hamzeh v R

[2022] NSWCCA 232

Sexual offencesDrugs
APPEAL APPLICANT STOOD TRIAL WITH A CO C OUNTS 1 TO 8 CHARGED THE APPLICANT COMPLAINANT WAS 14 YEARS OLD WHETHER VERDICTS INCONSISTENT APPEAL DISMISSED.

Citation: Hamzeh v R [2022] NSWCCA 232
Court: NSW Court of Criminal Appeal
Date: 31 October 2022
Judges: Beech-Jones CJ at CL, Price J, Lonergan J

Background

The applicant stood trial in the District Court alongside a co-accused on an indictment of eleven counts, all concerning the same complainant, a 14-year-old girl referred to as JN. The applicant had already pleaded guilty to two counts of supplying prohibited drugs (marijuana and "ice"). The remaining counts against him went to the jury.

The Crown alleged that on 12 June 2016, the applicant met JN at a train station, drove her to his caravan, supplied her with drugs including GHB (also called "G" or "GHB," a drug that can cause sedation and incapacitation), and then had sexual intercourse with her. The aggravating circumstance for the sexual offence was that he took advantage of her being under the influence of alcohol or a drug. He admitted having sex with JN but denied supplying her with GHB and claimed she had told him she was 18, not 14.

Further counts alleged the applicant later took JN to an adult shop and sexually assaulted her there. The jury convicted him of supplying GHB (Count 3) and aggravated sexual intercourse with a child (Count 4), but acquitted him of all other sexual offences (Counts 5 to 8). The co-accused was acquitted on all counts against him (Counts 9 to 11). The applicant sought leave to appeal his convictions on Counts 3 and 4.

  • Whether the guilty verdicts on Counts 3 and 4 were inconsistent with the not-guilty verdicts on Counts 5 to 8 (the adult shop offences)
  • Whether the convictions on Counts 3 and 4 were unreasonable and unable to be supported by the evidence, including whether it was open to the jury to find that: (a) JN told the applicant she was 14 years old; and (b) the applicant supplied JN with GHB

Decision

On inconsistency (Ground 2): The full Court dismissed this ground. Beech-Jones CJ at CL, with Price J and Lonergan J agreeing, reasoned that the acquittals on Counts 5 to 8 were most readily explained by the jury not being satisfied beyond reasonable doubt that the sexual intercourse alleged in those counts actually occurred. That intercourse was disputed, whereas the intercourse underlying Count 4 was admitted by the applicant. The late disclosure of the adult shop events (first raised by JN in a statement in May 2018, nearly two years after the events) gave the jury a rational basis to accept JN as generally honest but to require something additional, whether objective evidence or agreed facts, before convicting on those counts. The verdicts were therefore explicable and not logically inconsistent.

On unreasonableness (Ground 1): the majority view: Price J and Lonergan J, forming the majority, held that it was reasonably open to the jury to convict on both Counts 3 and 4. On the age question, the majority found the jury could accept JN's evidence that she told the applicant she was 14. On the GHB question, the majority pointed to several features of the evidence: JN immediately told triple-zero and a paramedic that she had been drugged and that the applicant had told her it was "G"; her described physical symptoms were consistent with pharmacological evidence about GHB's effects; and the applicant's own explanation for giving JN liquid droplets in water was assessed as implausible. The majority also noted that GHB's very short half-life meant it could not be detected in later toxicological testing, which did not assist the applicant. The jury's advantage of having seen and heard both JN and the applicant was emphasised.

On unreasonableness (Ground 1): the dissent: Beech-Jones CJ at CL would have upheld this ground. The Chief Judge accepted that JN was honest and that the jury could find she told the applicant her age. However, his Honour concluded it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the applicant supplied GHB, given the vagueness of JN's described symptoms, the presence of other drugs in her blood, the absence of forensic confirmation, and uncertainty about whether her statements to police about being given "G" were based on something the applicant told her or on her own inference.

Orders Made

  • Leave granted to the applicant to raise Grounds 1 and 2 of his notice of appeal
  • Appeal dismissed

Key Takeaways

  • Acquittals on some counts in a multi-count trial do not necessarily render guilty verdicts on other counts inconsistent. Where the acquittals are explicable by the jury applying different evidentiary standards to disputed conduct (here, disputed sexual acts with late disclosure), there is no logical contradiction with convictions on counts where the underlying conduct was admitted.

  • The Court of Criminal Appeal confirmed the application of the Pell v The Queen (2020) standard: a conviction is unreasonable only if it was not open to the jury, acting on all the evidence, to be satisfied of guilt beyond reasonable doubt. The appellate court does not simply substitute its own view.

  • A divided court illustrates that the "reasonably open" standard in unreasonableness appeals does not always produce a clear outcome. The same evidence on GHB supply led the Chief Judge to a different conclusion from the majority, reflecting genuine room for evaluative disagreement within the applicable legal test.

  • Immediate and consistent complaint evidence, supported by pharmacological expert evidence about a drug's effects, can be sufficient to ground a jury finding on drug supply even in the absence of toxicological confirmation, provided the jury accepts the witness as credible.

  • Where a Crown case is structured so that proof of one count depends on proof of an element of another count (here, proof of GHB supply was required to establish the aggravating circumstance for the sexual offence), the evidentiary foundation for the linked element must be capable of supporting guilt beyond reasonable doubt on both charges.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 66C(4) (aggravated sexual intercourse with a child) and s 578A (suppression of victim identity)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- AJ v R [2022] NSWCCA 136
- Siafakas v R [2016] NSWCCA 100
- Yousef Jidah v R [2014] NSWCCA 270
- Re Gary Dunn (1986) 32 A Crim R 203