R v Nous

Case [2010] VSCA 42 11 March 2010

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 814 of 2008

THE QUEEN
	v
GEORGE REFAAT NOUS

---

JUDGES	NEAVE and REDLICH JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 August 2009
DATE OF JUDGMENT	11 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 42 1^st Revision: 1 June 2010 – [65]
JUDGMENT APPEALED FROM	R v Nous (Unreported, County Court of Victoria, Judge Pullen, 1 September 2008)

---

CRIMINAL LAW – Conviction – Rape – Lesser alternative verdict of indecent assault not left to the jury – Factors bearing on whether alternative should be left – Failure by counsel to request lesser alternative – Absence of cogent evidence to support alternative – Verdict not unsafe and unsatisfactory – Appeal dismissed.

---

Appearances:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	C Marshall & Associates

NEAVE JA
REDLICH JA
LASRY AJA:

Following a trial in the County Court at Melbourne the applicant, George Refaat Nous, was found guilty of one count of rape. The count related to an act of oral penetration of a complainant who resided in the house with the applicant’s friend. The applicant was sentenced to 4 years’ imprisonment with a non-parole period of 2 years. He now seeks leave to appeal against conviction.

The grounds of appeal

By notice of application dated 10 September 2008 and full statement of grounds dated 17 February 2009 the applicant relied upon the following two grounds of appeal:

1.The trial of the applicant miscarried in that the offence of indecent assault was not left for the jury’s consideration.

2. The guilty verdict of the jury was unsafe and unsatisfactory.

The submissions in relation to each of these grounds were based upon the evidence received at trial in relation to the element of ‘penetration’. The applicant submitted that the evidence given by the complainant was equivocal as to whether penetration had actually occurred. In those circumstances, it was submitted, that the trial judge erred in failing to leave indecent assault as a lesser alternative charge to the offence of rape. Further, and in the alternative, it was submitted that the Court should conclude that the evidence of the complainant which bore upon that element was so weak, that the verdict should be regarded as unsafe.

In response it was submitted on behalf of the Crown that the submissions of the applicant were based upon a misapprehension of the applicant’s evidence which considered as a whole, was unequivocal as to the element of penetration. Counsel drew attention to the course of the trial and the position adopted by the defence. The defence case was a denial that the incident ever occurred. While conceding that the issue of penetration had been mentioned by the defence in its closing submissions, it was disputed that the issue had been put before the jury in any meaningful sense. The failure to put the issue, it was further submitted, was…

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 Nous

Details

AGLC: R v Nous [2010] VSCA 42
Case: [2010] VSCA 42
Decision Date: 11 March 2010

CaseChat Overview and Summary

The appeal was brought by the defendant, Nous, against his conviction for rape. The case was heard in the court of criminal appeal. The dispute centred on whether the trial judge should have left the option of an alternative verdict of indecent assault to the jury and whether the failure of defence counsel to request this constituted a significant error.

The primary legal issues were whether the trial judge erred in not leaving the alternative verdict of indecent assault to the jury and whether the omission by defence counsel to request this alternative constituted a significant error. The appeal also questioned whether the absence of cogent evidence to support the alternative verdict justified the trial judge's decision. The court needed to assess if the omission led to an unsafe and unsatisfactory verdict.

The court found that the decision not to leave the alternative verdict to the jury was not an error. It was noted that there was no cogent evidence to support the alternative verdict of indecent assault. The court held that the failure of defence counsel to request the alternative did not constitute a significant error as it would not have made a difference to the outcome. The verdict was deemed safe and satisfactory. Consequently, the appeal was dismissed.

Orders