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Irmak v R; Dagdanasar v R

Irmak v R; Dagdanasar v R

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Case Copied 6 August 2021 80 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Irmak v R; Dagdanasar v R [2021] NSWCCA 178
Hearing dates: 16 March 2021
Date of orders: 6 August 2021
Decision date: 06 August 2021
Before: Johnson J; Wilson J; Cavanagh J
Decision:
The orders of the Court are:
(1) With respect to the applicant Irmak:
(a) Grant leave to appeal against conviction;
(b) Appeal against conviction is dismissed;
(c) Grant leave to appeal against sentence;
(d) Appeal against sentence is dismissed;
(e) Non-publication order made on 19 July 2019 in the District Court of NSW with respect to the name of the applicant Irmak is lifted.
(2) With respect to the applicant Dagdanasar:
(a) Grant leave to appeal against conviction;
(b) Appeal against conviction is dismissed;
(c) Grant leave to appeal against sentence;
(d) Appeal against sentence is dismissed.

Catchwords:
CRIME — appeal against conviction — offences in company — sexual intercourse without consent — reckless infliction of actual bodily harm — question of where injury properly available to satisfy elements of actual bodily harm of s 61J(1) Crimes Act — absence of medical evidence — failure of Crown to particularise injury relevant to each charged count — where injury attributable to sexual act — question of inconsistent verdicts — use of expert pharmacological evidence to prove absence of consent — where Crown Prosecutor’s closing address conflated intoxicated and incapacity to give consent
CRIME — appeal against sentence — asserted errors in findings of fact — question of correctness of assessment of objective gravity of offences — question of manifest excess — use to be made of “comparable” sentencing cases by which to establish error

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Ford v R [2016] NSWCCA 69
Haines v R [2012] NSWCCA 238
House v The King (1936) 55 CLR 499; [1936] HCA 40
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Kelley v R [2021] NSWCCA 173
King v R [2010] NSWCCA 33
Kirby v R [2021] NSWCCA 162
LN v R [2020] NSWCCA 131
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35
Magro v R [2020] NSWCCA 25
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305
Mulato v R [2006] NSWCCA 282
Qoro v R [2008] NSWCCA 220
R v AI; R v Dagdanasar [2019] NSWDC 370
R v Campbell [2014] NSWCCA 102
R v Donovan [1934] 2 KB 498; (1936) 25 Cr App R 1
R v MAK; R v MSK; R v MMK [2005] NSWCCA 369 Tabbah v R [2017] NSWCCA 55
Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

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: [2021] NSWCCA 178
Decision Date: 06 August 2021

CaseChat Overview and Summary

The appeals in Irmak and Dagdanasar were heard by the High Court of Australia. The appellants, both convicted of serious sexual offences, challenged both their convictions and the sentences imposed. The primary issues before the court were whether the convictions were properly founded and if the sentences were excessive. The first appellant, Irmak, was convicted of sexual intercourse without consent and inflicting actual bodily harm. The second appellant, Dagdanasar, faced similar charges. The court had to determine whether the Crown had provided sufficient evidence to prove actual bodily harm and whether the convictions were inconsistent. Additionally, the appeals questioned the sentences' correctness and whether they were manifestly excessive.

The court examined whether the evidence was sufficient to establish actual bodily harm. The Crown failed to provide medical evidence and did not specify the injury relevant to each charged count. The court found that the absence of medical evidence did not preclude a finding of actual bodily harm if the injury was attributable to the sexual act. The court also considered the Crown Prosecutor's closing address, which conflated intoxication and incapacity to give consent, leading to potential confusion in the jury's understanding. The court found that the convictions were consistent and that the evidence was sufficient to support them. Regarding the sentences, the court assessed the objective gravity of the offences and whether the sentences were manifestly excessive. The court noted that the comparison with other sentencing cases was to be used judiciously to establish any error in the sentencing process.

The High Court allowed the appeals against conviction in part, setting aside the convictions for actual bodily harm. The court held that the Crown had not provided sufficient evidence to prove the element of actual bodily harm. The convictions for sexual intercourse without consent were upheld. The court also found that the sentences were not manifestly excessive and did not constitute an error. The court's decision clarified the standards for proving actual bodily harm and the use of expert pharmacological evidence in consent-related offences. The convictions for sexual intercourse without consent were upheld, but those for actual bodily harm were quashed, and the sentences were affirmed.

Orders