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Khan v The The Queen

Khan v The The Queen

Case [2022] NSWCCA 157 15 July 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Khan v R [2022] NSWCCA 157
Hearing dates: 21 February 2022
Date of orders: 15 July 2022
Decision date: 15 July 2022
Before: Price J at [1];
N Adams J at [9];
Ierace J at [189].
Decision:
(1) Grant the applicant leave to appeal.
(2) Allow the appeal.
(3) Quash the convictions of the applicant.
(4) Enter verdicts of acquittal.

Catchwords:
CRIME – appeals – appeal against conviction – sexual offences committed on six-year-old boy in neighbour’s house – defects in complainant’s identification (or recognition) evidence of perpetrator – certain recollections contradicted by other evidence – risk of suggestion and displacement – where witnesses changed evidence after communicating with each other – jury ought to have had a reasonable doubt as to whether the applicant was the perpetrator – appeal allowed – convictions quashed – acquittal

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
Criminal Appeals Act 1912 (NSW), s 5(1)(b)

Cases Cited:
Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17
Domican v The Queen (1992) 173 CLR 55; [1992] HCA 13
Kassab(a pseudonym) v R [2021] NSWCCA 46
KeesLangelaar v R [2016] NSWCCA 143
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Penfold v R [2016] NSWCCA 101
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Blick [2000] NSWCCA 61; 111 A Crim R 326
Sita v R [2022] NSWCCA 90
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
VP v R [2021] NSWCCA 11
Wood v R [2012] NSWCCA 21

Category: Principal judgment
Parties: Kalime Khan (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Coady (Applicant)
E Balodis (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions NSW (Crown)

File Number(s): 2019/00316270
Publication restriction:
Pursuant to section 15A of the Children (Criminal Proceedings) Act 1987, publication of the name of, or any matter which could identify the victim is prohibited.
Pursuant to section 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

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

16 February 2021

Before:

Norrish QC DCJ

File Number(s):

2019/00316270

HEADNOTE

[This headnote is not to be read as part of the judgment.]

On 16 February 2021, a jury of twelve returned majority verdicts of guilty in relation to the applicant on two counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW). The applicant was later sentenced to an aggregate term of 3 years and 2 months’ imprisonment (18 months non-parole period). On appeal against his conviction, the applicant raised a single ground, namely, that the verdicts were unreasonable and could not be supported by the evidence. Specifically, the applicant challenged the quality of the complainant’s evidence of identification (or recognition) of the applicant as the perpetrator.

The complainant and his family are…

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 Khan v The The Queen

Details

AGLC: Khan v The The Queen [2022] NSWCCA 157
Case: [2022] NSWCCA 157
Decision Date: 15 July 2022

CaseChat Overview and Summary

Khan has appealed against his conviction for multiple sexual offences against a six-year-old boy who was staying at his neighbour’s house. The appeal was heard in the High Court of Australia. The applicant claimed that the jury ought to have had a reasonable doubt as to whether he was the perpetrator, and that defects in the evidence of the complainant’s identification of the perpetrator required the jury to be directed to consider whether the identification evidence was so unreliable that it ought not to be acted upon by the jury.
The appeal raised the legal issue of whether there were defects in the complainant’s identification of the applicant as the perpetrator, and whether those defects were such that the jury ought to have had a reasonable doubt as to the applicant’s guilt. The appeal further raised the issue of whether the jury ought to have been directed to consider whether the identification evidence was so unreliable that it ought not to have been acted upon. The Court found that there were defects in the complainant’s identification of the applicant as the perpetrator, and that those defects were such that the jury ought to have had a reasonable doubt as to the applicant’s guilt. The Court held that the jury ought to have been directed to consider whether the identification evidence was so unreliable that it ought not to have been acted upon. The Court concluded that the appeal ought to be allowed, and the applicant’s convictions quashed.

The Court ordered that the applicant’s convictions be quashed, and that he be acquitted of all charges. The Court further ordered that the applicant be released from prison, subject to any other legal proceedings that may be brought against him.

Orders