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Court of Criminal Appeal 17 February 2023

Hossain v R

[2023] NSWCCA 18

Sexual offences
CRIME APPEAL CONVICTION APPEAL UNREASONABLE VERDICT SEXUAL INTERCOURSE WITHOUT CONSENT VERDICTS CLEARLY RECONCILABLE

Citation: Hossain v R [2023] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 17 February 2023
Judges: Basten AJA, Davies J, McNaughton J

Background

The appellant was convicted following a jury trial in the District Court of one count of sexual intercourse without consent (under s 61I of the Crimes Act 1900 (NSW)), arising from events on Christmas Day 2018 at a park in south-western Sydney. The complainant was 16 years old at the time and had been drinking throughout the day. The appellant was 35 years old and known to the complainant through mutual acquaintances.

The jury acquitted the appellant on two other counts arising from the same events: intentionally choking the complainant without consent, and aggravated sexual assault involving the reckless infliction of actual bodily harm. He was sentenced to six years and six months imprisonment with a non-parole period of three years and eight months. No challenge was made to the sentence.

The appellant sought leave to appeal against his conviction, also requiring an extension of time. The Crown did not oppose the time extension on procedural grounds but submitted that leave should be refused if no merit was found.

  • Whether the guilty verdict on count 3 (sexual intercourse without consent) was unreasonable or unsupported by the evidence, such that no jury acting reasonably could have been satisfied of guilt beyond reasonable doubt.
  • Whether the guilty verdict on count 3 was inconsistent with the not guilty verdicts on counts 1 and 2, such that the conviction could not stand.

Decision

On the first ground, the Court found that the verdict was not unreasonable. McNaughton J reviewed the complainant's evidence in detail and concluded that discrepancies in her account did not undermine the core allegation of sexual assault. Davies J agreed, noting that the inconsistencies were no more than might be expected given the two-year gap between the events and the trial, and the complainant's level of intoxication at the time. The complainant had made a complaint of rape almost immediately after leaving the scene, repeated it to her partner at the house shortly thereafter, and repeated it again in a triple-0 call and to police. Her distress in the immediate aftermath provided further corroboration of her account.

On the second ground, the Court rejected the argument that the three verdicts were irreconcilable. McNaughton J reasoned that the physical evidence relating to the complainant's neck (marks observed by a nurse, but described in indeterminate terms and potentially consistent with causes other than choking) left it open to the jury to accept that the appellant grabbed the complainant's neck without being satisfied beyond reasonable doubt that this constituted intentional choking or the infliction of actual bodily harm as those terms are legally defined. The verdicts therefore reflected the jury's careful, count-by-count approach as directed by the trial judge, rather than any logical inconsistency.

The Court was unanimous in dismissing the appeal, with all three judges agreeing that the complainant's evidence on the central allegation was capable of supporting the conviction and that the verdicts could be clearly reconciled.

Orders Made

  • Time in which to seek leave to appeal extended to 22 April 2022.
  • Leave granted to appeal against conviction.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed that discrepancies in a complainant's evidence do not automatically render a guilty verdict unreasonable, particularly where the inconsistencies are explicable by the passage of time or the complainant's state at the time of the events.
  • A near-immediate complaint, repeated to multiple people and captured in a police call, can provide significant support for the credibility of a complainant's account.
  • Where physical evidence is ambiguous and capable of multiple explanations, a jury may reasonably decline to be satisfied beyond reasonable doubt as to elements of aggravated or related counts while still accepting the core allegation on a lesser count.
  • Verdicts on different counts arising from the same facts are not necessarily inconsistent simply because some result in acquittal and others in conviction; the test is whether the verdicts are clearly reconcilable having regard to the evidence and the legal directions given.
  • Sufficient evidence existed here to support a finding of guilt on the sexual assault count even though the jury was not satisfied on the choking and aggravated assault counts, consistent with the jury following the trial judge's direction to consider each count separately.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 37, 61I, 61J
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), s 38

Cases:
- M v The Queen (1994) 181 CLR 487
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- Pell v The Queen (2020) 268 CLR 123
- The Queen v Baden-Clay (2016) 258 CLR 308
- Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Z (a pseudonym) v R [2022] NSWCCA 8
- AS v R [2022] NSWCCA 291
- Nadin (a pseudonym) v R [2022] NSWCCA 284
- Dellow v R [2020] NSWCCA 301
- RA v R [2020] NSWCCA 356
- Pethybridge v R [2020] NSWCCA 185
- Roos v R [2019] NSWCCA 67
- Crickitt v R [2018] NSWCCA 240
- Reed v R [2006] NSWCCA 314