R v Darko Janceski - [2005] NSWCCA 287

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Habib [2005] NSWCCA 223

FILE NUMBER(S):
2005/493

HEARING DATE(S): 26 May 2005

JUDGMENT DATE: 17/06/2005

PARTIES:
The Crown
Meme Habib (Appl)

JUDGMENT OF: McClellan AJA Simpson J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0161

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

COUNSEL:
D Woodburne (Crown)
M Thangaraj (Appl)

SOLICITORS:
Solicitor for Public Prosecutions
Murphy's Lawyers (Appl)

CATCHWORDS:
CRIMINAL LAW
appeal against conviction
sexual intercourse without consent
whether the verdict was unreasonable and cannot be supported having regard to the evidence

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act s 6(1)

DECISION:
1. Appeal allowed
2. Conviction and sentence quashed
3. Enter a verdict of acquittal

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/493 CCAP
McCLELLAN AJA
SIMPSON J
ROTHMAN J
FRIDAY 17 JUNE 2005

REGINA v Meme HABIB

Judgment

McCLELLAN AJA: On Friday, 10 June 2005 the Court made orders in this matter upholding the appeal. I now publish my reasons for joining in the Court's orders.
The appellant was convicted of one count of sexual intercourse with the complainant, LNH, without her consent knowing that she was not consenting contrary to s 61I of the Crimes Act 1900. The maximum penalty for the offence is a term of imprisonment for 14 years.
The appellant who pleaded not guilty gave evidence at the trial. Following his conviction he was sentenced to imprisonment for a period of three years and six months with a non-parole period of two years.
There are two grounds of appeal. The first ground is that the verdict was unreasonable and cannot be supported having regard to the evidence. The second ground is that the trial judge erred when directing the jury with respect to lies.
Background facts
The appellant was employed as a carer for disabled people at premises at Winston Hills. On the day of the alleged offence, 15 November 2002, the complainant was employed in a similar capacity. Both the appellant and complainant were employed through an agency named Edmen Employment Agency.
The complainant gave evidence that the first occasion on which she worked with the agency was 25 October 2002 when she worked at premises at Baulkham Hills. The disabled people, referred to as "clients", of those premises suffered from cerebral palsy. On that day the appellant was also present at the house. One of their joint duties was to take the clients to Rooty Hill RSL Club to play poker machines and have lunch. On that occasion the appellant and the complainant had some personal conversation and the appellant told the complainant about himself.
A couple of weeks later the complainant and the appellant again worked on the same shift. On this occasion the appellant asked the complainant if she would join him for lunch. The complainant initially said "yes" but changed her mind and declined the invitation saying to the appellant that "I've got other things to do." After they had completed the shift on that…

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 R v Darko Janceski

Details

AGLC: R v Darko Janceski [2005] NSWCCA 287
Case: [2005] NSWCCA 287
Decision Date: 18 August 2005

CaseChat Overview and Summary

In the case of R v Darko Janceski, the appellant was convicted of sexual intercourse without consent. The appeal concerns the appellant's challenge to the verdict, arguing that it was unreasonable and not supported by the evidence. Additionally, the appellant claims that the trial judge erred in directing the jury regarding the appellant's lies. The background of the case involves the appellant, a carer employed at Winston Hills, and the complainant, another carer, who were employed through the Edmen Employment Agency. The alleged offence occurred on 15 November 2002, when the complainant was working a shift at the premises where the appellant was also present.

The primary legal issues addressed by the court were whether the verdict was unreasonable and could not be supported by the evidence and whether the trial judge erred in directing the jury concerning the appellant's lies. The court examined the evidence presented and the credibility of the complainant's testimony, particularly in light of the appellant's claims that the sexual activity was consensual. The court also assessed the trial judge's directions to the jury regarding the appellant's lies and their potential impact on the jury's decision-making process.

The court concluded that the verdict was not unreasonable and could be supported by the evidence. The complainant's testimony was found to be credible, and the jury was properly directed regarding the appellant's lies. The court held that the evidence supported the conclusion that the appellant engaged in sexual intercourse without the complainant's consent. The directions given by the trial judge to the jury did not prejudice the appellant's case, and the verdict was thus upheld. The appeal was dismissed.

No further orders were made by the court in this instance.

Orders

Orders of the court

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Background

Background to the litigation

There are two grounds of appeal. The first ground is that the verdict was unreasonable and cannot be supported having regard to the evidence. The second ground is that the trial judge erred when directing the jury with respect to lies.Background facts The appellant was employed as a carer for disabled people at premises at Winston Hills. On the day of the alleged offence, 15 November 2002, the complainant was employed in a similar capacity. Both the appellant and complainant were employed through an agency named Edmen Employment Agency. The complainant gave evidence that the first occasion on which she worked with the agency was 25 October 2002 when she worked at premises at Baulkham Hills. The disabled people, referred to as "clients", of those premises suffered from cerebral palsy. On that day the appellant was also present at the house. One of their joint duties was to take the clients to Rooty Hill RSL Club to play poker machines and have lunch. On that occasion the appellant and the complainant had some personal conversation and the appellant told the complainant about himself. A couple of weeks later the complainant and the appellant again worked on the same shift. On this occasion the appellant asked the complainant if she would join him for lunch. The complainant initially said "yes" but changed her mind and declined the invitation saying to the appellant that "I've got other things to do." After they had completed the shift on that day the appellant drove the complainant a distance to a bus stop where she caught a bus home. On the day of the alleged offence, the complainant was rostered to work from 4 pm to 10 pm at Winston Hills House. She arrived at 3.40 pm when another worker and the appellant were present. There were four clients in the house each of whom had cerebral palsy and could not speak or walk. The house was comprised of five bedrooms, a lounge room and a kitchen. One of the bedrooms was the office and staff bedroom which was used by a staff member who was rostered for night duty which required that person to sleep on the premises. The complainant commenced her duties which included showering the clients and putting them to bed. She was wearing a grey shirt, jeans (described as stretch jeans) and joggers. At about 7.30 pm the appellant called the complainant into the kitchen and told her that she should complete the housework required of her before talking to the clients. The complainant apparently thanked the appellant for the advice and remarked that she was only new to the job. Just before 10 pm the complainant received a phone call from her boss, Frank Barila from the Edmen Employment Agency. He told her that her shift the following day had changed from a 5.30 pm start to a 7.30 am start. After she hung up she spoke to the appellant and told him about the change of shift. The appellant then suggested that the complainant should stay the night at the house. The complainant said "no" she had a morning shift and her next shift was a sleep over and she had to get home to gather things. The appellant said "it's okay, just sleep, spend the night" and the complainant said "no" again.

Evidence

Evidence Before The Court

Mr Barila rang a second time and informed the complainant that her shift for the following day was to change again and she was to commence work in the afternoon. The complainant told the appellant of this change in her roster which, of course, meant she did not have to commence work the following morning. The appellant then suggested that the complainant should stay back that evening which she agreed to do saying "Yes that I'd stay back, but only for a little while".The Crown evidence The complainant gave evidence that having decided to stay back she made a cup of tea and sat herself on the couch in the lounge room. The appellant sat on the other end of the couch and they were separated by some cushions. The complainant gave evidence that the appellant then asked her questions including whether or not she had a boyfriend. She replied to that question:"No, I just broke up with my fiancée a couple of months ago." She was then asked:"Q. Did he say anything further?A.Yeah, he said, "Why am I still single, am I scared of guys or something."Q. What did you say?A. I said "No, I'm happy being single." The complainant then said that the appellant moved the cushions which separated them on the couch and gave the following account of the incident:"Q. After he did that did he do anything else?A. Yes.Q. What did he do?A. He reached across and grabbed me.Q. Did he say anything at that time?A. No.Q. How did he grab you?A. He grabbed the top of my arms.Q.When you say the top of your arms, can you just indicate what you mean by that?A. There.Q. You have indicated your right arm?A. Right, yes.Q. Near the shoulder?A. Yes.Q.You have indicated he grabbed the top part of your arm, what did he do?A.He then slung me onto him facing him, and then he started kissing me.Q. Did you say anything?A. Yeah I told him to stop and that I wasn't like that.Q.What did he do when you told him to stop and that you weren't like that?A. He didn't do anything, he kept on going.Q. And did you say anything further to him?A. I kept on saying that I wasn't like that at all, and to stop.Q. While he was kissing you did he have his hands on you?A. Yeah he was holding me like a bear hug.Q. Where were your legs at that point in time?A. I can't recall.Q. How did he pick you up?A. He reached and grabbed me.Q. How?A. Reached over and grabbed me towards him.Q.By what part of your body, what part of the body did he grab?A. My upper body.Q. Did you try and do anything?A. I tried to get away, but I couldn't move.Q. Why couldn't you move?A. Because he was holding me and I was scared.Q. What did Mr Habib then do?A. He reached down my top and started feeling my breasts.Q. Was there anything said at that point in time?A.He did say at some stage that I looked beautiful, but that was it.Q. What happened next?A.He pulled my jeans down and his tracksuit pants and he put his penis in my vagina and started moving.Q. Were you wearing underwear?A. Yes.Q. Did he do anything with respect to your underwear?A. He pulled it down.Q. Did you say anything at that point in time?A.I had kept on saying 'stop' during the whole thing, but he didn't, wasn't saying anything.Q.And how did you feel when he grabbed you and put you on his lap?A. I was very scared.Q. Did you scream for help?A. No.Q. Why not?A. Because I was scared and didn't know what to do.Q. Did you try to get off Mr Habib?A. Yes.Q. And how did you do that?A. I tried to move away but he just kept holding me tighter.Q. For how long did Mr Habib have his penis in your vagina?A. About 10 or 15 minutes.Q. Did he ejaculate?A. Yes.Q. After he ejaculated what did you do?A. I got off him and I went to the office and grabbed my stuff.Q.When you returned from the office did he say anything to you?A.He said something about getting a taxi home, and I said no, that I wanted to walk home.Q. Was there any other conversation with him?A. I can't remember.Q. Did you want Mr Habib to penetrate your vagina?A. No, I was at work, I was there to do my job.Q.Was there any other conversation with Mr Habib before you left the premises?A. I can't recall."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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