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: Crickitt v R [2018] NSWCCA 240
Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21
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
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
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:
Solicitors:
E Anderson (Applicant)
A Bonnor (Respondent)
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,…
Continue reading Hossain v The King
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- AGLC
- Hossain v The King [2023] NSWCCA 18
- Case
- [2023] NSWCCA 18
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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