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Masri v The Queen

Masri v The Queen

Case [2020] NSWCCA 24 28 February 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Masri v R [2020] NSWCCA 24
Hearing dates: 17 February 2020
Date of orders: 28 February 2020
Decision date: 28 February 2020
Before: Johnson J at [1]
Price J at [2]
Davies J at [3]
Decision:
Leave to appeal against conviction refused.

Catchwords: CRIME - appeals - appeal against conviction – sexual offences – whether complainant consented – where trial judge did not give good character direction – where no direction sought – whether failure to seek direction was inadvertent or a tactical forensic decision – whether miscarriage of justice
Legislation Cited: Crimes Act 1900 (NSW) ss 61I, 61L
Criminal Appeal Rules r 4
Cases Cited: ARS v R [2011] NSWCCA 266
Brown v R [2019] NSWCCA 269
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
R v Stalder [1981] 2 NSWLR 9
Simic v The Queen (1980) 144 CLR 319
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Texts Cited: Nil
Category: Principal judgment
Parties: Ahmed Masri (Appellant)
Crown (Respondent)
Representation:
Counsel:
P Lange (Appellant)
D Patch (Respondent)
Solicitors:
M Chahine (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/310843
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

12 – 28 February 2019

Before:

North DCJ

File Number(s):

2017/310843

Judgment

JOHNSON J: I agree with Davies J.
PRICE J: I agree with Davies J and the order that he proposes.
DAVIES J: The appellant was charged with four counts of indecent assault contrary to s 61L Crimes Act 1900 (NSW), seven counts of sexual intercourse without consent contrary to s 61I of the Crimes Act, and one count of attempted sexual intercourse without consent. The complainant in relation to all of the charges was a woman the appellant met through Facebook. All of the offences were said to have taken place on the same date within a timespan of approximately an hour.
The appellant was tried before Judge North and a jury. The jury returned verdicts of guilty in relation to two of the counts of sexual intercourse without consent and one count of indecent assault. The jury returned not guilty verdicts in relation to the other nine counts. The counts were charged in chronological order and the counts in respect of which the appellant was convicted were the last three counts charged.
On 29 March 2019 the appellant was sentenced to an aggregate sentence of four years imprisonment commencing 4 March 2019 and expiring 3 March 2023 with a non-parole period of two years and six months expiring 3 September 2021.
The appellant appeals against his conviction. Although the notice of appeal relied on two grounds, counsel for the appellant abandoned the second ground at the outset of the hearing of the appeal. Accordingly, the only ground of…

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 Masri v The Queen

Details

AGLC: Masri v The Queen [2020] NSWCCA 24
Case: [2020] NSWCCA 24
Decision Date: 28 February 2020

CaseChat Overview and Summary

The appellant, Masri, was convicted in the County Court of Victoria of sexual offences against a complainant. He appealed against his conviction to the Court of Appeal, arguing that the trial judge did not give a good character direction and that this omission constituted a miscarriage of justice. The respondent, the Crown, submitted that the failure to give the direction was a tactical decision by the appellant's counsel, and not inadvertent. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

The primary legal issue before the Court of Appeal was whether the trial judge's failure to give a good character direction, in the absence of a request by the appellant's counsel, constituted a miscarriage of justice. The Court also considered whether the failure to give the direction was inadvertent or a tactical forensic decision by the appellant's counsel. The Court noted that the appellant's counsel had cross-examined the complainant about her sexual history, and the Court held that this was inconsistent with a request for a good character direction. The Court concluded that the failure to give the direction was a tactical decision by the appellant's counsel.

The Court of Appeal held that the failure to give a good character direction did not constitute a miscarriage of justice. The Court noted that the jury had been given directions about the presumption of innocence and the burden of proof, and that the appellant had not suffered any prejudice as a result of the omission. The Court also held that the failure to give the direction was a tactical decision by the appellant's counsel, and that the appellant had not demonstrated that this decision had caused him any prejudice. The appeal was dismissed.

The Court of Appeal did not make any orders in relation to the appeal.

Orders