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Court of Criminal Appeal 9 December 2022

Houshyar v R

[2022] NSWCCA 245

Sexual offencesDrugsTheft & property

Citation: Houshyar v R [2022] NSWCCA 245
Court: Court of Criminal Appeal, NSW
Date: 9 December 2022
Judge(s): Garling J (primary reasons); Adamson J and N Adams J (agreeing)

Background

The appellant was convicted at the Sydney District Court in July 2020 on four counts: causing a person to take an intoxicating substance with intent to commit an indictable offence (s 38(b) Crimes Act 1900), sexual intercourse without consent (s 61I), and two counts of larceny (s 117). He was sentenced in February 2021 to an aggregate term of eight years' imprisonment with a non-parole period of five years.

The Crown's case arose from events on 4 February 2019. The complainant, a sex worker, attended the appellant's apartment in Surry Hills in the early morning hours. The Crown alleged the appellant gave her a drink containing a significant, undisclosed quantity of gamma-hydroxybutyrate (GHB), rendering her unconscious. When she awoke, alone and unclothed, she discovered her vagina was injured, her clothing had been urinated on, and approximately $6,000 in cash and her mobile phone had been taken.

The case against the appellant was entirely circumstantial. No witness gave direct evidence of the assault or the thefts. The Crown relied on the complainant's account, physical injuries, the presence of the appellant's seminal fluid in the complainant's vagina, and CCTV footage of the appellant outside the apartment building.

  • Whether the jury verdicts were unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912
  • Whether the circumstantial evidence, including expert pharmacological evidence and the complainant's account, was sufficient to exclude all reasonable hypotheses consistent with innocence
  • Specifically, whether it was open to the jury to reject the possibility that the complainant had engaged in consensual intercourse while conscious but no longer forming memories due to GHB

Decision

Garling J conducted a detailed review of all evidence, applying the established appellate standard for unreasonable verdict grounds: the court must itself examine the evidence and ask whether it was open to the jury to be satisfied of guilt beyond reasonable doubt (following M v The Queen (1994) 181 CLR 487 and Pell v The Queen (2020) 268 CLR 123).

The complainant's evidence described a progression from a fully clothed, non-sexual encounter to waking injured and alone after consuming a drink provided by the appellant. Expert pharmacological evidence addressed the known effects of GHB, including the quantities that would cause extended unconsciousness, and confirmed that the duration of the complainant's loss of consciousness was inconsistent with the recreational doses she described having used previously.

A central defence hypothesis was that the complainant remained conscious throughout the encounter but ceased forming new memories as a result of GHB, meaning any sexual activity could have been consensual. The expert witness acknowledged this was "possible in theory" but, on the evidence as a whole, did not consider it had occurred. Garling J found it was open to the jury to reject that hypothesis as a reasonable possibility.

His Honour concluded the jury was entitled to be satisfied of each element of the Crown case and that no miscarriage of justice had occurred. Both Adamson J and N Adams J agreed, each confirming independently that the verdicts were reasonably open on the evidence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court conducting an unreasonable verdict review must independently assess the whole of the evidence, not merely ask whether some evidence supported conviction.
  • A circumstantial Crown case can support conviction even where no witness gives direct evidence of the principal offences, provided the jury was entitled to exclude all reasonable hypotheses consistent with innocence.
  • Expert pharmacological evidence about the properties and dosage effects of GHB formed a legitimate part of the evidentiary foundation on which the jury could assess the plausibility of competing hypotheses about the complainant's state of consciousness.
  • Where an expert witness acknowledges a defence hypothesis is theoretically possible but, on the evidence, considers it did not occur, it remains open to the jury to reject that hypothesis as a reasonable possibility consistent with innocence.
  • Procedurally, leave to appeal approximately four weeks out of time was granted without Crown objection, with the Court noting the delay was attributable to the appellant's legal representatives rather than the appellant personally.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 38(b), 61I, 117
- Criminal Appeal Act 1912 (NSW): s 6(1)

Cases
- Chidiac v The Queen (1991) 171 CLR 432
- Dansie v The Queen [2022] HCA 25; 96 ALJR 728
- Hocking v Bell (1945) 71 CLR 430
- Liberato v The Queen (1985) 159 CLR 507
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen (2020) 268 CLR 123
- R v Baden-Clay (2016) 258 CLR 308
- SKA v The Queen (2011) 243 CLR 400
- Whitehorn v The Queen (1983) 152 CLR 657