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El-Ali v The Queen

El-Ali v The Queen

Case [2015] NSWCCA 300 2 December 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: El-Ali v R [2015] NSWCCA 300
Hearing dates: 7 September 2015
Decision date: 02 December 2015
Before: Ward JA at [1];
Adams J at [2];
R A Hulme J at [3]
Decision:
1. Appeal against conviction dismissed.
2. Leave to appeal against sentence refused.

Catchwords:
CRIMINAL LAW – appeal against conviction – offence of sexual intercourse without consent in circumstances of aggravation – whether verdict unreasonable – whether error in directions to jury concerning tendency evidence – whether error in failure to provide reasons for discharging the jury – verdict well open – no error established – appeal dismissed
CRIMINAL LAW – appeal against sentence – offence of sexual intercourse without consent in circumstances of aggravation – whether error in concluding that presence of another person aggravated the offence – no merit – leave to appeal refused
Legislation Cited: Crimes Act 1900 (NSW) s 61J
Criminal Appeal Act 1912 (NSW) ss 5F, 6(1)
Criminal Procedure Act 1986 (NSW) Ch 6 Pt 5 Div 3, s 294
Evidence Act 1995 (NSW) ss 97, 101
Cases Cited: Agius v R [2015] NSWCCA 200
DAO v R [2011] NSWCCA 63; 81 NSWLR 568
Evans v R [2006] NSWCCA 277; 164 A Crim R 489
Harris v R [2005] NSWCCA 432; 158 A Crim R 454
Kilby v The Queen [1973] HCA 30; 129 CLR 460
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
R v Ford [2009] NSWCCA 306; 201 A Crim R 451
R v PWD [2010] NSWCCA 209; 205 A Crim R 75
RH v R [2014] NSWCCA 71
Saoud v R [2014] NSWCCA 136
Shamoun v R [2015] NSWCCA 246
Sokolowskyj v R [2014] NSWCCA 55
Category: Principal judgment
Parties: Houssam Khaled El-Ali (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr P Lange (Applicant)
Ms M Cinque SC (Crown)
Solicitors:
Kings Law Group
Solicitor for Public Prosecutions

File Number(s): 2010/230286
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

27 July 2012

Before:

Sweeney DCJ

File Number(s):

2010/230286

Judgment

WARD JA: I have had the opportunity of agreeing with R A Hulme J's comprehensive reasons, with which I agree. I also agree with the orders his Honour has proposed.
ADAMS J: I agree with R A Hulme J.
R A HULME J: Houssam Khaled El-Ali ("the applicant") was found guilty by a jury in a trial before her Honour Judge Sweeney on 31 May 2012 of an offence of having sexual intercourse without consent in circumstances of aggravation (the victim was under the age of 16, namely 13).
The offence is contrary to s 61J(1) of the Crimes Act 1900 (NSW). There is a maximum penalty of imprisonment for 20 years and there is also a standard non-parole period of 10 years.
The applicant was sentenced to imprisonment for 9 years with a non-parole period of 6 years dating from 31 May 2012. The non-parole period…

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 El-Ali v The Queen

Details

AGLC: El-Ali v The Queen [2015] NSWCCA 300
Case: [2015] NSWCCA 300
Decision Date: 02 December 2015

CaseChat Overview and Summary

The appellant, El-Ali, appealed against his conviction and sentence for sexual intercourse without consent in circumstances of aggravation. The case was heard in the High Court of Australia. The appellant contended that the verdict was unreasonable, that there was an error in the directions to the jury concerning tendency evidence, and that there was an error in the failure to provide reasons for discharging the jury. The appellant also sought leave to appeal against his sentence, arguing that there was an error in concluding that the presence of another person aggravated the offence.

The court considered whether the verdict was unreasonable, whether there was an error in the directions to the jury concerning tendency evidence, and whether there was an error in the failure to provide reasons for discharging the jury. The court also considered whether there was an error in concluding that the presence of another person aggravated the offence. The court found that the verdict was well open on the evidence, and that there was no error in the directions to the jury concerning tendency evidence. The court also found that there was no error in the failure to provide reasons for discharging the jury. In relation to the sentence, the court found that there was no merit in the appellant's argument that there was an error in concluding that the presence of another person aggravated the offence.

The High Court dismissed the appeal against conviction and sentence. The court found that the verdict was well open on the evidence, and that there was no error in the directions to the jury concerning tendency evidence. The court also found that there was no error in the failure to provide reasons for discharging the jury. In relation to the sentence, the court found that there was no merit in the appellant's argument that there was an error in concluding that the presence of another person aggravated the offence. The court refused leave to appeal against the sentence.

Orders