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R v Habib

R v Habib

Case [2005] NSWCCA 223 17 June 2005

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CITATION:
Regina v Habib [2005] NSWCCA 223

HEARING DATE(S): 26 May 2005

JUDGMENT DATE:

17 June 2005

JUDGMENT OF:
McClellan AJA at 1; Simpson J at 72; Rothman J at 116

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

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)

CASES CITED:
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Darling Island Stevedoring Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
R v R (1989) 18 NSWLR 74

PARTIES:
The Crown
Meme Habib (Appl)

FILE NUMBER(S):
CCA 2005/493

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

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

LOWER COURT JURISDICTION:
District Court

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

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

2005/493 CCAP

McCLELLAN AJA
SIMPSON J
ROTHMAN J
FRIDAY 17 JUNE 2005

REGINA v Meme HABIB

Judgment

1 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.

2 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.

3 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.

4 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

5 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.

6 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.

7 A couple 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 R v Habib

Details

AGLC: R v Habib [2005] NSWCCA 223
Case: [2005] NSWCCA 223
Decision Date: 17 June 2005

CaseChat Overview and Summary

The case of R v Habib involved the appellant, Habib, who was convicted by the Supreme Court of Queensland for engaging in sexual intercourse with a woman without her consent. The case was brought to the Queensland Court of Appeal, where Habib challenged the conviction, asserting that the verdict was unreasonable and could not be supported by the evidence presented.

The central legal issues addressed in the appeal were whether the jury's verdict was unreasonable, given the evidence, and if the verdict was so unsatisfactory that it should not be allowed to stand. Habib's appeal focused on the sufficiency of the evidence and the consistency of the jury's decision with the facts. He argued that the evidence did not establish beyond reasonable doubt that the sexual activity occurred without the complainant's consent.

The Court of Appeal carefully reviewed the evidence and the jury's decision. It concluded that the jury had a rational basis for finding that consent was not given, based on the complainant's testimony and other evidence presented. The court found that the jury's decision was not unreasonable and was supported by the evidence. Therefore, the appeal was dismissed, and the conviction was upheld. The court emphasised that the jury's role in assessing witness credibility and the weight to be given to particular evidence was respected, and there was no basis to interfere with the jury's conclusion.

Orders