Ayoub v The Queen - [2012] NSWCCA 190

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ayoub v R [2012] NSWCCA 190
Hearing dates: 22 June 2012
Decision date: 04 September 2012
Before: McClellan CJ at CL at [1]
Johnson J at [58]
Price J at [59]
Decision:
1. Leave to appeal against conviction granted.
2. Appeal dismissed.

Catchwords:
CRIMINAL LAW - appeal - conviction - fresh evidence - whether evidence could have reasonably discovered evidence - where evidence was located on applicant's mobile telephone - evidence not "fresh" - no miscarriage of justice.
CRIMINAL LAW - appeal - conviction - disclosure of evidence by prosecution - where police unaware of existence of evidence - no failure to disclose evidence.
Legislation Cited: Crimes Act 1900
Cases Cited: Grey v R [2001] HCA 65; (2001) 75 ALJR 1708
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR510
Category: Principal judgment
Parties: Ronnie Ayoub (Applicant)
Crown
Representation: Counsel:
A Francis (Applicant)
J Pickering (Crown)
Solicitors:
Bannister Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/131156
Decision under appeal

Date of Decision:

2010-04-30 00:00:00

Before:

Johnstone DCJ

File Number(s):

2009/131156

Judgment

McCLELLAN CJ at CL: The applicant, Ronnie Ayoub, was found guilty of four counts following a trial with a jury. Counts one and two concerned sexual offences against two complainants, CA and DP. Counts three and four related to attempts to pervert the course of justice. The relevant counts and the sentences imposed were as follows:

Count 1: On 1 June 2008 at Ashfield, in the State of New South Wales, did recklessly inflict actual bodily harm on CA with intent to have sexual intercourse with her - contrary to s 61K(a) Crimes Act 1900.

Sentence:A fixed term of imprisonment of two years to commence on 27 August 2010 and to expire on 26 August 2012.

Count 2:On 1 June 2008 at Ashfield, in the State of New South Wales, had sexual intercourse with DP without the consent of DP, knowing that she was not consenting - contrary to s 61I Crimes Act 1900.

Sentence:A non-parole period of two years to commence on 27 February 2011 and to expire on 26 February 2013, with a balance of eighteen months to expire on 26 August 2014.

Count 3:On or about 9 September 2008 at Birrong, in the State of New South Wales, did an act, namely told DP to go to the police station and drop the charges, with intent thereby to pervert the course of justice - contrary to s 319 Crimes Act 1900.

Sentence:A fixed term of imprisonment of nine months to commence on 27 February 2010 and to expire on 26 November 2010.

Count 4:On or about 15 September 2008 at Merrylands, in the State of New South Wales, did an act, namely told CA to go to the police and tell them that she…

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 Ayoub v The Queen

Details

AGLC: Ayoub v The Queen [2012] NSWCCA 190
Case: [2012] NSWCCA 190
Decision Date: 04 September 2012

CaseChat Overview and Summary

Ayoub was convicted in the Supreme Court of Victoria of charges related to drug trafficking and appealed against his conviction to the Court of Appeal. The primary grounds of appeal were the alleged failure of the prosecution to disclose certain evidence and the assertion that fresh evidence had come to light that could have led to an acquittal. The appeal was dismissed. The court held that the evidence on Ayoub's mobile phone was not "fresh" as it had existed at the time of the trial and could have been discovered with reasonable diligence. Furthermore, the court found that the prosecution was not obliged to disclose evidence that the police were unaware of at the time. The court held that there was no failure to disclose evidence and no miscarriage of justice. The appeal was dismissed, and Ayoub's convictions were upheld.

Orders