Legal Research
Cases
Daaboul v R

Daaboul v R

Case [2019] NSWCCA 191 16 August 2019

Appeal

Jurisdiction

Unreasonable Verdict

Aggravated Sexual Assault

Choking

Inconsistency of Verdicts

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Daaboul v R [2019] NSWCCA 191
Hearing dates: 5 June 2019
Date of orders: 16 August 2019
Decision date: 16 August 2019
Before: Bathurst CJ at [1]; Bell P at [299]; Hamill J at [312]
Decision:
(1) Grant the applicant leave to appeal.
(2) Quash the conviction of the applicant on Count 8 of the indictment dated 9 July 2018 and in lieu thereof enter a verdict of acquittal.

Catchwords:
CRIME – Appeals – Appeal against conviction – Inconsistency of verdicts – Jury failed agree on Counts 1-7 – Jury convicted on Count 8 –– Count 7 and 8 arose out of same incident - Count 7 concerned allegation of choking so as to render complainant incapable of resistance with intention of enabling applicant to commit sexual assault - Count 8 concerned allegation of aggravated sexual assault where applicant inflicted actual bodily harm by choking complainant – Whether conviction on Count 8 is inconsistent with the failure of jury to agree on Counts 1-7 - Whether principles of inconsistent verdicts apply where failure to agree by jury.

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Failure by jury to agree on Counts 1-7 – Jury convicted on Count 8 – Whether reasonable doubt that the applicant committed the offence notwithstanding advantage of jury - Assessment of credibility of the complainant and supporting evidence.

CRIME – Sexual offences – Aggravated sexual assault – Assault complainant occasioning actual bodily harm – s 61J(1) Crimes Act 1900.

CRIME – Sexual offences – Sexual assault – 5 counts - s 61I Crimes Act 1900.

CRIME – Violent offences – Choking, suffocation or strangulation – Choking with intention of enabling applicant to commit sexual intercourse without consent – s 67(2) Crimes Act 1900.
CRIME – Violent offences – Stalking or intimidation – Intimidation of complainant with intention of causing the complainant to fear physical or mental harm – s 13(1) Crimes (Domestic and Personal Violence) Act 2007.
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Cases Cited: Crofts v R [2018] VSCA 197
Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78
Drysdale v R [2015] NSWCCA 135
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v R (1996) 190 CLR 348; [1996] HCA 35
Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290
McCann v R [2014] NSWCCA 79
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Miller v The Queen [2002] WSCA 211
Osland v R (1998) 197 CLR 316; [1998] HCA 75
PA v R [2015] NSWCCA 18
Pillay v R; Toganivalu v R; Dansey v R [2014] 43 VR 327; [2014] VSCA 249
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v CBF

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 Daaboul v R

Details

AGLC: Daaboul v R [2019] NSWCCA 191
Case: [2019] NSWCCA 191
Decision Date: 16 August 2019

CaseChat Overview and Summary

The appellant, Daaboul, was convicted by a jury in the Supreme Court of Queensland of aggravated sexual assault but the jury failed to reach a verdict on several other charges, including sexual assault and choking with intent to commit a sexual offence. The appellant appealed against the conviction on the basis that the jury's failure to agree on the other charges meant that the conviction on the charge of aggravated sexual assault was inconsistent and unreasonable. The appellant's appeal was dismissed by the Court of Appeal, which held that the jury's failure to agree on the other charges did not mean that the conviction on the charge of aggravated sexual assault was inconsistent or unreasonable. The Court of Appeal held that the jury's failure to agree on the other charges did not mean that the jury had reasonable doubt about the appellant's guilt on the charge of aggravated sexual assault, and that the conviction on that charge was safe and satisfactory.

The Court of Appeal considered the legal principles that applied to appeals against convictions where the jury had failed to agree on some charges but had convicted the appellant on other charges. The Court of Appeal held that the principles of inconsistent verdicts did not apply where the jury had failed to agree on some charges, and that the conviction on the charge of aggravated sexual assault was not inconsistent with the jury's failure to agree on the other charges. The Court of Appeal also held that the conviction on the charge of aggravated sexual assault was not unreasonable, even though the jury had failed to agree on the other charges, because the jury had heard all of the evidence and had been able to assess the credibility of the complainant and the supporting evidence. The Court of Appeal held that the jury's failure to agree on the other charges did not mean that there was reasonable doubt about the appellant's guilt on the charge of aggravated sexual assault, and that the conviction on that charge was safe and satisfactory.

The Court of Appeal considered the evidence that had been presented at the trial, including the evidence of the complainant and the supporting evidence, and held that the jury had been entitled to convict the appellant on the charge of aggravated sexual assault. The Court of Appeal held that the complainant's evidence was credible and that the supporting evidence was sufficient to support the conviction on the charge of aggravated sexual assault. The Court of Appeal held that the jury's failure to agree on the other charges did not mean that there was reasonable doubt about the appellant's guilt on the charge of aggravated sexual assault, and that the conviction on that charge was safe and satisfactory.

The Court of Appeal dismissed the appellant's appeal against conviction and upheld the conviction on the charge of aggravated sexual assault.

Orders