Elmowy v The Queen - [2015] NSWCCA 85

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elmowy v R [2015] NSWCCA 85
Hearing dates: 13 March 2015
Decision date: 06 May 2015
Before: Macfarlan JA at [1];
Simpson J at [53];
Schmidt J at [54]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sexual intercourse without consent – appeal against convictions – whether jury verdicts unreasonable – s 6 Criminal Appeal Act 1912 – appeal dismissed
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW), s 66
Cases Cited: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; 181 CLR 487
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: Alexander Elmowy (Applicant)
Regina (Respondent)
Representation:
Counsel:
G James QC/G D Wendler (Applicant)
N J Adams (Respondent)
Solicitors:
Saba Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/203487
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

New South Wales

Date of Decision:

24 October 2014

Before:

McClintock DCJ

File Number(s):

2013/203487

Judgment

MACFARLAN JA: In 2014 the applicant, Alexander Elmowy, was convicted after trial of two offences alleged in the Indictment in the following terms:

“1. Between the 15th day of April 2013 and the 30th day of April 2013, at Bondi in the state of New South Wales, [Alexander Elmowy] did have sexual intercourse with [the complainant] without her consent and knowing that [she] had not consented to the sexual intercourse.
2. On 10 June 2013 at Bondi in the state of New South Wales [Alexander Elmowy] did attempt to have sexual intercourse with [the complainant] without her consent and knowing that [she] had not consented to the sexual intercourse.”

The applicant seeks leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the ground that the jury’s verdicts are unreasonable (see s 6(1) of the Act). In determining such a ground of appeal, this Court must make “an independent assessment of the evidence, both as to its sufficiency and its quality” and determine “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11] and [14]). The “central question” to be answered in making such an independent assessment is whether the court is satisfied that the applicant was guilty of the offences (ibid at [20]).
Having made such an assessment, I am, for the reasons stated below, of the view that the Crown proved its case beyond reasonable doubt and that it was therefore open to the jury to convict the applicant.

THE EVIDENCE AT THE TRIAL

The complainant’s evidence

In about August 2010 the complainant who was then aged about 20 formed a relationship with the applicant who was aged about 22. She moved into the home in which he…

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 Elmowy v The Queen

Details

AGLC: Elmowy v The Queen [2015] NSWCCA 85
Case: [2015] NSWCCA 85
Decision Date: 06 May 2015

CaseChat Overview and Summary

Elmowy v The Queen involved the appellant who was convicted of various counts of sexual intercourse without consent. The dispute centred on the sufficiency of the evidence to sustain the jury's verdicts and whether those verdicts were unreasonable. The case was heard in the High Court of Australia, which was asked to determine whether the jury's verdicts were so unreasonable as to justify intervention under section 6 of the Criminal Appeal Act 1912.

The legal issues before the Court were whether the evidence was sufficient to sustain the jury's verdicts and whether those verdicts were unreasonable. The appellant contended that the evidence was not sufficient to sustain the jury's verdicts and that the verdicts themselves were unreasonable. The appellant's arguments hinged on the reliability and credibility of the complainant's evidence, as well as the presence of reasonable doubt.

The Court examined the evidence and the verdicts in detail, considering the principles set out in previous cases. It found that the evidence was sufficient to support the jury's verdicts and that the verdicts were not unreasonable. The Court held that the jury had considered the evidence carefully and had come to a conclusion that was open to them based on the evidence presented. The Court found that the appeal was not successful, and the convictions were upheld. The appeal was dismissed.

Orders