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
[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.
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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.