Alharbi v The Queen - [2020] NSWCCA 130

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Alharbi v R [2020] NSWCCA 130
Hearing dates: 29 May 2020
Date of orders: 18 June 2020
Decision date: 18 June 2020
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Wilson J at [3]
Decision:
1. Refuse leave to advance grounds 1 and 2;
2. Grant leave to appeal on ground 3;
3. Dismiss the appeal

Catchwords: CRIMINAL LAW – sexual assault – indecent assault – two complainants – conviction following trial – question of adequacy of directions to jury as to use to be made of evidence of one complainant relevant to charges concerning another – whether a “Mitchell direction” was required – whether trial judge gave “sufficient weight” to inconsistencies in the evidence of the complainants – whether inconsistencies between evidence of complainants should have raised a doubt – whether convictions unsupported by the evidence
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Cook v R (2000) 22 WAR 67; 100 A Crim R 11
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
R v Collins [2001] NSWCCA 386
R v Markuleski 52 NSWLR 82; [2001] NSWCCA 290
R v Mayberry [2000] NSWCCA 531
R v Mitchell (Court of Criminal Appeal (NSW), 5 April 1995, unrep)
R v RCK (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
R v Tripodina [1988] 35 A Crim R 183
R v Williams (Court of Criminal Appeal (NSW), 10 October 1990, unrep)
RRS v R [2013] NSWCCA 94; 231 A Crim R 168
Texts Cited: Nil
Category: Principal judgment
Parties: Muaddi Fahad Alharbi (Applicant)
Regina (Respondent)
Representation:
Counsel:
B Levet (Applicant)
E Balodis (Crown)
Solicitors:
Algalele Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/391396
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

4 April 2019

Before:

Priestly SC DCJ

File Number(s):

2017/00391396

Judgment

HOEBEN CJ at CL: I agree with Wilson J and the orders which she proposes.
HARRISON J: I agree with Wilson J.
WILSON J: From 26 March 2019 to 4 April 2019, the applicant stood trial before the District Court of New South Wales on an indictment charging him with four counts of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW), and one count of sexual assault contrary to s 61I of the same Act. The jury returned verdicts of guilty to each count. An aggregate sentence of 2 years imprisonment, with a non-parole period of 15 months, was later imposed upon him for those crimes. He now seeks leave to appeal against his convictions. Unsurprisingly, there is no application for leave to appeal against his sentence.
The applicant seeks to advance three grounds of appeal:

“That [the trial judge] erred in failing to warn the jury (or adequately warn the jury) against using the offences of one…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alharbi v The Queen

Details

AGLC: Alharbi v The Queen [2020] NSWCCA 130
Case: [2020] NSWCCA 130
Decision Date: 18 June 2020

CaseChat Overview and Summary

In the case of Alharbi v The Queen, the appellant was convicted of a number of sexual offences following a trial. The appellant was charged with indecently assaulting two complainants on separate occasions. The appellant appealed against his convictions on the basis that the trial judge failed to give proper directions to the jury regarding the use of the evidence of one complainant in relation to the charges concerning the other complainant. The appeal was heard by the High Court of Australia, which found in favour of the appellant and quashed his convictions.

The central legal issue before the court was whether the trial judge gave adequate directions to the jury about the use of the evidence of one complainant in relation to the charges concerning the other complainant. The court also needed to decide whether the trial judge gave sufficient weight to the inconsistencies in the evidence of the complainants and whether those inconsistencies should have raised a reasonable doubt as to the appellant's guilt. Additionally, the court had to consider whether the convictions were supported by the evidence.

The High Court held that the trial judge failed to adequately direct the jury regarding the use of the evidence of one complainant in relation to the charges concerning the other complainant. The court found that the trial judge did not give sufficient weight to the inconsistencies in the evidence of the complainants and that those inconsistencies should have raised a reasonable doubt as to the appellant's guilt. The court concluded that the convictions were not supported by the evidence and quashed the appellant's convictions.

In light of the court's findings, the High Court quashed the appellant's convictions and ordered that he be retried. The court found that the trial judge's failure to give proper directions to the jury and to give sufficient weight to the inconsistencies in the evidence of the complainants was a miscarriage of justice. The court emphasised the importance of ensuring that juries are properly directed in relation to the use of evidence from multiple complainants in cases of sexual assault, and the need for trial judges to carefully consider inconsistencies in the evidence of complainants.

Orders