Behi v The King

Case [2024] NSWCCA 89


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Behi v R [2024] NSWCCA 89
Hearing dates: 12 June 2024
Date of orders: 16 August 2024
Decision date: 16 August 2024
Before: Ward P at [1]; Campbell J at [420]; Button J at [422]
Decision:

1.   Extend time for filing notice of appeal to 1 February 2024.

2.   Grant leave to appeal.

3.   Dismiss the appeal.

Catchwords:

CRIME – Appeals – Appeal against conviction – Exclusion of evidence under s 293 of the Criminal Procedure Act 1986 (NSW) – Whether evidence of sexual experience of complainant at about the time of the commission of the alleged prescribed sexual offences – Whether evidence of sexual experience of complainant forms part of connected set of circumstances in which alleged prescribed sexual offences occurred – Evidence not forming part of such circumstances

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where offending occurred at applicant’s chiropractic studio – Where complainant has limited grasp of English – Where complainant took contemporaneous notes – Alleged inconsistencies between notes and other evidence – Where inconsistencies explicable – Verdict reasonably open to jury on all counts

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 61KD, 578A

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Procedure Act 1986 (NSW), ss 3, 130A, 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

Cases Cited:

Adams v R [2018] NSWCCA 303

AK v The Queen [2022] NSWCCA 175

ARS v R [2011] NSWCCA 266

AW v R [2023] NSWCCA 92

Chia v R [2021] NSWCCA 51

Cook (a pseudonym) v R [2022] NSWCCA 282

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

GEH v R [2012] NSWCCA 150

Greenhalgh v R [2017] NSWCCA 94

Harper v R [2022] NSWCCA 211

Hayne v R [2022] NSWCCA 11

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

Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7Lee v R [2023] NSWCCA 70

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Manojlovic v R; R v Manojlovic [2020] NSWCCA 315

Maughan v R [2020] NSWCCA 51

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Park v R [2023] NSWCCA 71

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Picken v R [2007] NSWCCA 319

Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44

R v Basha (1989) 39 A Crim R 337

R v Burton [2013] NSWCCA 335

R v Charbel Rahme [2004] NSWCCA 233

R v Morgan

Continue reading Behi v The King

Sign in free to access the full text

Details
AGLC
Behi v The King [2024] NSWCCA 89
Case
[2024] NSWCCA 89
Decision Date

CaseChat Overview and Summary

In the case of Behi v The King, the appellant, Mr Behi, appealed against his conviction for a series of prescribed sexual offences that allegedly occurred at his chiropractic studio. The respondent, the Crown, sought to uphold the jury's verdict. The High Court of Australia was tasked with determining whether the evidence presented during the trial was admissible under section 293 of the Criminal Procedure Act 1986 (NSW), and whether the jury's verdict was unreasonable.

The primary legal issue the court addressed was whether evidence of the complainant's sexual experience around the time of the alleged offences could be excluded under section 293 of the Criminal Procedure Act 1986 (NSW). Additionally, the court had to consider whether the evidence in question formed part of the connected set of circumstances in which the alleged offences occurred. Furthermore, the court examined whether the jury's verdict was unreasonable, particularly given the complainant's limited grasp of English and the alleged inconsistencies between her contemporaneous notes and other evidence.

The court held that evidence of the complainant's sexual experience was not admissible under section 293 of the Criminal Procedure Act 1986 (NSW) because it did not form part of the connected set of circumstances in which the alleged offences occurred. However, the court noted that this exclusion did not necessarily render the jury's verdict unreasonable. The court found that the inconsistencies between the complainant's notes and other evidence were explicable, and that the jury was entitled to consider all the evidence in reaching its verdict. Consequently, the court concluded that the verdict was reasonably open to the jury on all counts.

The court dismissed the appeal and affirmed the conviction. The jury's verdict was deemed to be within the range of reasonable possibilities, taking into account all the evidence presented during the trial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.