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Hossain v The King

Hossain v The King

Case [2023] NSWCCA 18 17 February 2023

Appeal

Criminal Liability

Unconscionable Conduct

Reasonable Doubt

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hossain v R [2023] NSWCCA 18
Hearing dates: 12 October 2022
Date of orders: 17 February 2023
Decision date: 17 February 2023
Before: Basten AJA at [1];
Davies J at [2];
McNaughton J at [5]
Decision:
(1) Time in which to seek leave to appeal extended to 22 April 2022;
(2) Leave granted to appeal against conviction;
(3) Appeal dismissed.

Catchwords:
CRIME – appeal – conviction appeal – unreasonable verdict – whether inconsistencies in the complainant’s evidence were so grave that her account could not be believed beyond reasonable doubt – whether verdict of guilty on one count was inconsistent with verdict of not guilty on the other counts – sexual intercourse without consent – discrepancies in evidence did not undermine complainant’s core account of the allegation – verdicts clearly reconcilable – appeal dismissed.

Legislation Cited:
Crimes Act 1900 (NSW) ss 37, 61I, 61J
Criminal Appeal Act 1912 (NSW) ss 5, 6
Evidence Act 1995 (NSW) s 38

Cases Cited:
AS v R [2022] NSWCCA 291
Crickitt v R [2018] NSWCCA 240
Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21
Dellow v R [2020] NSWCCA 301
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Nadin(a pseudonym) v R [2022] NSWCCA 284
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Pethybridge v R [2020] NSWCCA 185
RA v R [2020] NSWCCA 356
Reed v R [2006] NSWCCA 314
Roos v R [2019] NSWCCA 67
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Z (a pseudonym) v R [2022] NSWCCA 8

Texts Cited:
Richard J. McNally, Remembering Trauma (1st ed, 2005, Cambridge, Harvard University Press) at 48-62

Category: Principal judgment
Parties: Jamal Hossain (Applicant)
Rex (Respondent)
Representation:
Counsel:
E Anderson (Applicant)
A Bonnor (Respondent)
Solicitors:
Ivy Law Group (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/40893
Publication restriction:
Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987, publication of the name(s) of, or any matter which could identify the victim and children are prohibited.
Pursuant to s 578A of the Crimes Act 1900, publication of any matter which could identify the victim is prohibited.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

29 October 2020 (Verdict)

Before:

Woodburne SC DCJ

File Number(s):

2019/40893

Judgment

BASTEN AJA: I agree with McNaughton J.
DAVIES J: I have had the advantage of reading in draft the judgment of McNaughton J. From my own examination of the evidence, I am entirely persuaded that the jury should not have had a reasonable doubt about the guilt of the applicant.
Whilst there were certainly some discrepancies in the complainant’s evidence,…

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 Hossain v The King

Details

AGLC: Hossain v The King [2023] NSWCCA 18
Case: [2023] NSWCCA 18
Decision Date: 17 February 2023

CaseChat Overview and Summary

In the case of Hossain v The King, the appellant was convicted of sexual intercourse without consent, and he appealed against his conviction. The appellant argued that the jury's verdict was unreasonable and should be set aside, claiming that inconsistencies in the complainant’s evidence rendered her account unbelievable beyond reasonable doubt. Furthermore, he contended that the verdict of guilty on one count was inconsistent with the verdict of not guilty on other counts, suggesting that the jury's decision was flawed.

The court examined whether the discrepancies in the complainant’s evidence were significant enough to undermine her credibility and whether the verdicts were irreconcilable. It found that while there were inconsistencies in the evidence, these did not affect the core account of the alleged offence. The court held that the jury was entitled to accept parts of the complainant's evidence and reject other parts, and that the verdicts were clearly reconcilable. Therefore, the appeal was dismissed, affirming the conviction.

The court's reasoning centred on the credibility and consistency of the complainant’s evidence, concluding that the jury’s acceptance of parts of her testimony, despite some inconsistencies, did not make the verdict unreasonable. The court held that the jury was free to assess the credibility of the witnesses and that the verdicts did not exhibit any logical inconsistency that would warrant interference.

In conclusion, the appeal was dismissed, and the conviction for sexual intercourse without consent was upheld. The court found no basis to interfere with the jury's decision, as the inconsistencies in the evidence did not undermine the complainant's core account, and the verdicts were clearly reconcilable.

Orders