HARB v The Queen - [2011] NSWCCA 9

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: HARB v R [2011] NSWCCA 9
Hearing dates: 4 February 2011
Decision date: 04 February 2011
Before: Whealy JA at 1
RS Hulme J at 2
Harrison J at 17
Decision:
Appeal dismissed

Category: Principal judgment
Parties: Charle HARB (Appellant)
Regina (Crown)
Representation: Counsel:
J Pickering (Crown)
C Davenport SC (Appellant)
Solicitors:
S Kavanagh Solicitor Public Prosecutions
Peter Katsoolis Lawyers

File Number(s): 2009/1530
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-08-28 00:00:00

Before:

Armitage DCJ

File Number(s):

2009/1530

Judgment

WHEALY JA : The sole issue on this appeal, as Ms Davenport outlined it, is this: Is there a rational explanation for the inconsistency in the verdict? In my view for the reasons given by Justice Hulme, I think there is. I agree with Hulme J in all respects.

RS HULME J: On 24 August 2009, the above named Appellant was indicted before a jury on three charges:-

(i) That on 27 May 2008 he assaulted MS and at the time committed an act of indecency upon her;

(ii) That on 27 May 2008 he had sexual intercourse with MS without her consent and knowing she was not consenting and she then being under the age of 16; and

(iii) That on 27 May 2008 he had sexual intercourse with MS without her consent and knowing she was not consenting and she then being under the age of 16.

The act of indecency relied on in the first count was touching of the complainant's breasts. The intercourse relied on in the second count was the placing of fingers into the complainant's vagina. The intercourse relied on in the third count was the placing of the Appellant's penis in the complainant's vagina. All three events occurred in close succession and all were admitted by the Appellant to have occurred.

On 28 August 2009 the jury acquitted the Appellant on the first and second charges and convicted him on the third. The sole ground of appeal is that the verdict on count 3 is unreasonable in view of the acquittals on counts 1 and 2. There is no appeal against sentence.

The complainant's evidence was that she had not consented to the actions of the Appellant. His evidence was that she had. In summary the complainant alleged that she had gone into a bedroom to change the song on a computer, that the Appellant then walked in, closed the door, pulled her down onto a bed, pushed her back, started touching her on the breasts, inserted one or more of his fingers and then his penis into her vagina. She said that from the outset and throughout these events she was saying "No, I want to go", "No, I don't want to", telling the Appellant to stop and trying to push him off her.

The Appellant's evidence was that before the complainant went into the bedroom, he discussed having sex with her, she agreed and when in the bedroom actively…

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.

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Details

Case: [2011] NSWCCA 9
Decision Date: 04 February 2011

CaseChat Overview and Summary

The case of HARB v The Queen involved the appellant, Charle HARB, who was appealing against his conviction on one count of sexual intercourse without consent, while being acquitted on two other related counts. The appeal was heard by the Court of Criminal Appeal of the Supreme Court of New South Wales, with Whealy JA, RS Hulme J, and Harrison J presiding. The sole issue presented was whether there was a rational explanation for the inconsistency in the jury's verdict.

The appellant was indicted on three charges related to an incident on 27 May 2008 involving a complainant, MS. The jury acquitted the appellant on the first and second charges, which involved an act of indecency and non-consensual sexual intercourse, while convicting him on the third charge, which also involved non-consensual sexual intercourse. The inconsistency in the verdicts was the main focus of the appeal.

The court examined the evidence presented in the trial, including the complainant's testimony and the appellant's defence, as well as the trial judge's directions to the jury. The court concluded that there was a rational explanation for the inconsistency in the jury's verdicts. While acknowledging that the inconsistency was unusual, the court found that the jury might have believed that the conviction on the most serious charge sufficiently reflected the appellant's culpability. The court also noted that the evidence concerning the use of a condom did not impact the safety of the verdict.

In conclusion, the Court of Criminal Appeal dismissed the appeal, finding no miscarriage of justice in the jury's verdict on the third count. The order of the court was that the appeal be dismissed.

Orders