AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 16 August 2024

Behi v R

[2024] NSWCCA 89

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT

Citation: Behi v R [2024] NSWCCA 89
Court: NSW Court of Criminal Appeal
Date: 16 August 2024
Judge(s): Ward P (principal judgment); Campbell J and Button J agreeing

Background

The applicant, a chiropractor practising in Sydney, was convicted by a jury in March 2022 of 13 counts of sexual offences against a patient. The offences comprised eight counts of non-consensual sexual touching in circumstances of aggravation and five counts of non-consensual sexual intercourse in circumstances of aggravation, all occurring during treatment sessions between January and April 2019. The applicant was sentenced to an aggregate term of nine years' imprisonment with a non-parole period of five years and six months.

The complainant was a Japanese citizen with limited English who had arrived in Australia in late 2018. She attended the applicant's clinic for treatment of lower back and groin pain. Her evidence at the second trial was given via video recording of her testimony from an earlier trial (at which the jury had been discharged after failing to reach a verdict), with interpreter assistance.

A central issue on appeal arose from a ruling made at the first trial, which carried into the second, excluding evidence under s 293 of the Criminal Procedure Act 1986 (NSW). That provision restricts evidence of a complainant's sexual experience in proceedings for prescribed sexual offences. The applicant also challenged the verdicts as unreasonable and unsupported by the evidence.

  • Whether the trial judge erred in excluding evidence of the complainant's alleged sexual activity under s 293 of the Criminal Procedure Act, on the basis that it did not qualify as forming part of a "connected set of circumstances" in which the alleged offences occurred.
  • Whether, if error in the exclusion of that evidence were established, the trial miscarried such that the applicant suffered practical injustice.
  • Whether the jury's verdicts on all 13 counts were unreasonable or unsupported by the evidence, including in light of alleged inconsistencies between the complainant's contemporaneous notes, counselling records, and text messages.

Decision

Ground 1: Exclusion of evidence under s 293

The Court accepted that the complainant's alleged professional sexual activity, if it occurred, took place "about the time" of some of the offences within the meaning of s 293(4)(a)(i). However, the provision also requires, under s 293(4)(a)(ii), that the sexual activity form part of "a connected set of circumstances" in which the alleged offences occurred. The Court held that this additional requirement narrows the exception considerably: near-contemporaneous activity must be sufficiently integrated with the alleged offending to form part of its circumstances. Sexual services performed elsewhere in a professional capacity did not meet that threshold and were properly excluded.

The Court then considered whether, even if error had been established, the trial had miscarried. To succeed, the applicant would need to show that the exclusion had the capacity for practical injustice or was capable of affecting the verdict. Given the low probative value of the excluded evidence, the Court found that any hypothetical error could not have satisfied that requirement.

Ground 2: Unreasonable verdicts

The applicant pointed to differences between the complainant's handwritten personal notes, counselling notes, and text message communications, arguing these inconsistencies undermined her reliability. The Court acknowledged those differences but found them explicable by reference to the complainant's limited grasp of English. The text messages between the applicant and the complainant were treated as particularly compelling, as they demonstrated the applicant's acceptance of instances of sexual contact having occurred. The Court was not left with a reasonable doubt as to the applicant's guilt on any count and found the verdicts were reasonably open to the jury.

Orders Made

  • Leave to appeal granted (noting the seriousness of the convictions and the arguable nature of Ground 1).
  • Appeal dismissed.

Key Takeaways

  • Under s 293(4)(a) of the Criminal Procedure Act, evidence of a complainant's sexual experience is not admissible merely because it occurred around the same time as the alleged offending. The activity must also form part of a connected set of circumstances in which the offences occurred, meaning it must be sufficiently integrated with the offending itself.
  • Where an evidentiary ruling is challenged on appeal, establishing the error alone is insufficient. The applicant must also demonstrate that the error had the capacity for practical injustice or was capable of affecting the outcome of the trial.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed that apparent inconsistencies in a complainant's accounts require contextual assessment. Where inconsistencies are explicable by factors such as limited English proficiency, they do not necessarily undermine the reliability of the complainant's evidence.
  • Contemporaneous text messages in which an accused implicitly accepts that sexual contact occurred can constitute especially compelling evidence in support of a conviction.
  • The Court did not need to address the operation of Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 or the proviso to s 6(1) of the Criminal Appeal Act 1912 in resolving the appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61KD, 578A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), ss 292B, 293, 294CB
- Evidence Act 1995 (NSW), ss 41, 55, 56, 102, 103
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5, 4.15

Key Cases
- Cook (a pseudonym) v The King [2024] HCA 26
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- AK v The Queen [2022] NSWCCA 175
- AW v R [2023] NSWCCA 92