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Court of Criminal Appeal 14 July 2004

Regina v Charbel Rahme [2004] NSWCCA 233 revised - 28

[2004] NSWCCA 233

Sexual offences
SEXUAL INTERCOURSE WITH CHILD CHILD PROSTITUTION DETAINING FOR ADVANTAGE UNREASONABLE VERDICTS INCONSISTENT VERDICTS PROBATIVE VALUE OF EVIDENCE

Citation: Regina v Charbel Rahme [2004] NSWCCA 233 revised - 28/07/2004
Court: NSW Court of Criminal Appeal
Date: 14 July 2004
Judges: Sully J, James J, Hulme J

Background

The appellant was tried in the District Court at Sydney before Woods DCJ and a jury on seven counts arising from events between January and April 2001. The charges included sexual intercourse with a child (the complainant, aged 15), coercing a child to participate in prostitution, receiving money derived from child prostitution, being in control of premises used for child prostitution, and detaining a person for advantage. The complainant had left her family home near Newcastle and come to Sydney, where she alleged the appellant drew her into prostitution at a brothel.

The appellant denied the Crown's account and contended that the complainant had, of her own initiative and prior to meeting him, made arrangements through an internet contact to travel to Sydney and work as a prostitute. On this version, she came to the premises voluntarily and presented herself as an adult.

The jury convicted the appellant on five of the seven counts (counts 1, 3, 4, 5 and 7) and acquitted him on the drug supply count and the assault occasioning actual bodily harm count. He was sentenced to a total term of eight years' imprisonment with a non-parole period of five years and four months. He appealed against four of his convictions and sought leave to appeal against sentence.

  • Whether the verdicts on certain counts were unreasonable or could not be supported by the evidence, within the meaning established in M v The Queen (1994) 181 CLR 487
  • Whether the verdicts on certain counts were inconsistent with one another, particularly given the jury's acquittal on related counts
  • Whether the trial judge erred in excluding "the Newcastle evidence," which was said to show that the complainant had engaged in prostitution independently of the appellant's involvement, prior to arriving in Sydney
  • Whether the trial judge properly applied the test under s 105 of the Criminal Procedure Act 1986 (NSW) (now s 293) when assessing the admissibility of evidence of the complainant's prior sexual experience or activity, specifically evidence from a witness identified as Ms Bennett
  • Whether the probative value of that excluded evidence outweighed any distress, humiliation or embarrassment its admission would cause the complainant

Decision

The Court allowed the appeals against convictions on counts 1, 3 and 7, finding those verdicts either unreasonable or inconsistent with the jury's own acquittals on related counts. The reasoning turned in part on the jury having acquitted the appellant of assault occasioning actual bodily harm (count 6), which was closely bound up with the Crown's case that the complainant was detained by force and coerced. The Court concluded that, on the evidence, the verdicts on those counts could not stand.

On counts 4 and 5, the Court found that the convictions could not be maintained because of error in the exclusion of relevant evidence at trial. The Court held that the trial judge erred in refusing to admit "the Newcastle evidence," which was independent evidence suggesting the complainant had engaged in prostitution of her own volition before any involvement with the appellant. This evidence was directly relevant to a central factual contest: whether her participation in prostitution was voluntary or coerced.

Regarding the evidence of Ms Bennett, the Court acknowledged complexity. The trial judge had found that the distress, humiliation or embarrassment to the complainant from admitting Ms Bennett's evidence would be substantial, partly because it implicitly suggested the complainant had voluntarily worked at a second brothel, which cut against her account of being forced into the work. The Court accepted there was logic in that assessment. However, the trial judge's evaluation had been distorted by the prior exclusion of the Newcastle evidence, since that independent evidence bore directly on the probative weight of Ms Bennett's testimony.

Because the Newcastle evidence had been wrongly excluded, and because its admission would have affected the correct balancing exercise under s 105 of the Criminal Procedure Act, the convictions on counts 4 and 5 could not stand. Rather than entering acquittals, the Court ordered a new trial on those counts, reflecting that a properly conducted trial with all admissible evidence before the jury could produce a different outcome.

Orders Made

  • Appeals against convictions on counts 1, 3 and 7 allowed; convictions on those counts set aside and quashed; verdicts of acquittal entered
  • Appeals against convictions on counts 4 and 5 allowed; convictions on those counts set aside; new trial of the appellant ordered on counts 4 and 5

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a jury's acquittal on one count is fundamentally inconsistent with its conviction on a closely related count, the conviction may not be sustained.
  • Under s 105 of the Criminal Procedure Act 1986 (NSW) (now s 293), a trial judge assessing whether to admit evidence of a complainant's prior sexual experience must correctly identify and weigh all probative evidence before conducting the balancing exercise against potential distress, humiliation or embarrassment.
  • Wrongly excluding independent evidence that bore on the central factual dispute, particularly evidence going to whether the complainant's conduct was voluntary or coerced, was sufficient to vitiate convictions on counts to which that evidence was relevant.
  • Where prior sexual experience evidence comes from an independent source rather than from a witness whose credibility is in doubt, its probative value in the s 105 balancing exercise may be weighted more heavily.
  • A retrial, rather than an acquittal, was the appropriate remedy where the evidentiary errors meant the jury had not assessed the full picture, and where a properly conducted new trial could legitimately result in conviction.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 105 (now s 293)
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)

Cases
- M v The Queen (1994) 181 CLR 487
- Mackenzie v The Queen (1996) 190 CLR 348
- Jones v The Queen (1994) 181 CLR
- Jones v The Queen (1997) 191 CLR 439
- MFA v The Queen (2002) 193 ALR
- R v Tubou [2001] NSWCCA 243
- R v Morgan (1993) 30 NSWLR 543
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Khouzame [2000] NSWCCA 505
- R v Knight (2001) 120 A Crim R 381
- R v Park [2003] NSWCCA 142
- House v The King (1936) 55 CLR 499
- Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353
- Minister for Immigration v Wu (1996) 185 CLR 259
- Papakosmos v The Queen (1999) 196 CLR 297
- Adam v The Queen (2002) 207 CLR 96
- R v Carusi (1997) 92 A Crim R 52
- R v PLV (2001) NSWCCA 282