Khamis v R; Hussain v R - [2018] NSWCCA 131

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Khamis v R; Hussain v R [2018] NSWCCA 131
Hearing dates: 20 November 2017
Decision date: 29 June 2018
Before: Gleeson JA at [1]
Fullerton J at [87]
Button J at [88]
Decision:
(1) Extend the time for Rafal Raad Khamis to appeal against his conviction.
(2) Leave to appeal against conviction is granted to Rafal Raad Khamis.
(3) The appeal against conviction of Rafal Raad Khamis is dismissed.
(4) Leave to appeal against conviction is granted to Ather Hussain.
(5) The appeal against conviction of Ather Hussain is dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – conviction of each appellant of one count of aggravated sexual assault – Crimes Act 1900 (NSW), s 61J – where Crown prosecutor opened to jury on more allegations than those about which complainant gave evidence – whether convictions bad for lack of particularity – whether convictions unreasonable or cannot be supported by the evidence – Criminal Appeal Act 1912 (NSW), s 6 (1) – whether evidence insufficient to establish elements of consent and knowledge of absence of consent – Crimes Act, s 61HA – where not guilty verdicts on another count – whether verdicts inconsistent and unreasonable
Legislation Cited: Crimes Act 1900 (NSW), ss 61H, 61HA, 61J
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), s 38
Cases Cited: Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
FP v R [2012] NSWCCA 182
Irwin v The Queen [2018] HCA 8
Lazarus v R [2016] NSWCCA 52
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
PA v R [2015] NSWCCA 18
R v Markuleski (2001) 52 NSWLR 82; [2002] NSWCCA 290
R v Murray (1987) 11 NSWLR 12
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
W v R [2014] NSWCCA 110
Category: Principal judgment
Parties: Rafal Raad Khamis; Ather Hussain (Applicants)
Regina (Crown)
Representation:
Counsel:
J Manuell SC (Applicant Khamis)
G Wendler (Applicant Hussain)
E Balodis (Crown)
Solicitors:
Legal Aid Commission of NSW (Applicants)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/336403; 2013/336457
Publication restriction: Non-publication order in relation to anything that might identify the complainant.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

06 May 2015

Before:

Graham ADCJ

File Number(s):

2013/336403; 2013/336457

Judgment

1 GLEESON JA: Each of the appellants, Mr Rafal Khamis and Mr Ather Hussain, seek leave to appeal from their respective conviction on one count of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW). Section 61J(1) creates an offence where a person has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and knows that the other person…

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: [2018] NSWCCA 131
Decision Date: 29 June 2018

CaseChat Overview and Summary

Two appellants, Khamis and Hussain, appealed against their convictions for aggravated sexual assault under section 61J of the Crimes Act 1900 (NSW). The case was heard in the Court of Criminal Appeal, which had jurisdiction to review the convictions and sentences imposed by the trial court. The appellants contended that their convictions were flawed due to issues with the particularity of the charges and the sufficiency of the evidence to establish the elements of the offence.

The court was required to determine whether the convictions were bad for lack of particularity, whether they were unreasonable or not supported by the evidence, and whether the evidence was insufficient to establish the elements of consent and knowledge of absence of consent under section 61HA of the Crimes Act. Additionally, the court had to consider whether the verdicts on another count, for which the appellants were acquitted, were inconsistent with the guilty verdicts on the charge of aggravated sexual assault.

The Court of Criminal Appeal found that the particularity of the charges was not defective, as the appellants were adequately informed of the allegations against them. The court held that the convictions were not unreasonable or unsupported by the evidence, as the jury was properly directed on the elements of the offence and had sufficient evidence to find the appellants guilty. The court also determined that the acquittals on another count did not render the convictions unreasonable or inconsistent. Consequently, the appeals were dismissed, and the convictions and sentences imposed by the trial court were affirmed.

Orders