Johnson J at [1]; N Adams J at [3]; Ierace J at [346].
Decision:
(1) Leave to appeal against conviction is granted.
(2) The appeal is dismissed.
Catchwords:
CRIME — Appeals — Appeal against conviction — whether verdicts were inconsistent or otherwise unreasonable – where both complainants alleged certain offences occurred in a garage at a time when the garage had not yet been constructed – where both complainants allege that certain offences occurred at a family home in 1974 or 1975 but they did not live at the premises until 1976 – where the applicant was acquitted on these counts – whether the jury’s doubts in respect of those counts were attributable only to doubts about the complainants’ credibility – held, the verdicts were not inconsistent or otherwise unreasonable
CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether the trial judge erred in failing to exclude the whole of one complainant’s evidence on the basis of hypnosis or EMDR therapy – where the complainant denied having hypnosis therapy – where EMDR therapy was undertaken after giving a statement to police but before trial and was not video recorded – where there was no indication that the complainant’s evidence changed following EMDR therapy – held, the trial judge’s finding with respect to hypnosis was a finding of fact in respect of which no error was demonstrated – held, the trial judge did not err in failing to exclude the evidence under s 137 on the basis of the EMDR therapy
CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether the trial judge erred in admitting evidence of complaints made to friends, partners and relatives in the decades following the alleged offences – meaning of “fresh in the memory” under s 66(2) of the Evidence Act – where traumatic events are likely to remain fresh in the memory for many years after the events – where complaints were made in similar terms many times over the relevant period – held, no error in admitting complaint evidence under s 66(2)
[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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AGLC
Kassab (a pseudonym) v R [2021] NSWCCA 46
Case
[2021] NSWCCA 46
Decision Date
CaseChat Overview and Summary
The case of Kassab (a pseudonym) v R concerned an appeal against conviction for various criminal offences. The applicant was convicted but acquitted on certain counts. The key issues before the court were whether the verdicts were inconsistent or unreasonable, whether the trial judge erred in failing to exclude evidence obtained through EMDR therapy, and whether the trial judge erred in admitting evidence of complaints made many years after the alleged offences. The court examined the credibility of the complainants, the impact of EMDR therapy on the complainants' evidence, and the admissibility of the delayed complaints under s 66(2) of the Evidence Act.
The court found that the verdicts were not inconsistent or unreasonable despite the complainants' accounts being improbable. The court accepted that the jury's doubts about the complainants' credibility led to acquittals on certain counts. Regarding the EMDR therapy, the court held that the trial judge's findings on hypnosis were findings of fact and that there was no demonstrated error. The court also found that the trial judge did not err in admitting evidence of complaints made to friends, partners, and relatives, as the events were likely to remain fresh in the memory for many years and the complaints were made consistently over time.
In conclusion, the court upheld the convictions, finding no error in the trial judge's handling of the evidence. The court found that the jury's doubts were properly considered in acquitting the applicant on certain counts, that the evidence obtained through EMDR therapy was properly admitted, and that the delayed complaints were properly admitted as being fresh in the memory of the complainants. The appeal against conviction was dismissed.