Kassab (a pseudonym) v R [2021] NSWCCA 46

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kassab (a pseudonym) v R [2021] NSWCCA 46 Hearing dates: 29 July 2020 Date of orders: 26 March 2021 Decision date: 26 March 2021 Before: Johnson J at [1]; N Adams J at [3]; Ierace J at [346]. Decision: (1) Leave to appeal against conviction is granted. (2) The appeal is dismissed. Catchwords: CRIME — Appeals — Appeal against conviction — whether verdicts were inconsistent or otherwise unreasonable – where both complainants alleged certain offences occurred in a garage at a time when the garage had not yet been constructed – where both complainants allege that certain offences occurred at a family home in 1974 or 1975 but they did not live at the premises until 1976 – where the applicant was acquitted on these counts – whether the jury's doubts in respect of those counts were attributable only to doubts about the complainants' credibility – held, the verdicts were not inconsistent or otherwise unreasonable CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether the trial judge erred in failing to exclude the whole of one complainant's evidence on the basis of hypnosis or EMDR therapy – where the complainant denied having hypnosis therapy – where EMDR therapy was undertaken after giving a statement to police but before trial and was not video recorded – where there was no indication that the complainant's evidence changed following EMDR therapy – held, the trial judge's finding with respect to hypnosis was a finding of fact in respect of which no error was demonstrated – held, the trial judge did not err in failing to exclude the evidence under s 137 on the basis of the EMDR therapy CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether the trial judge erred in admitting evidence of complaints made to friends, partners and relatives in the decades following the alleged offences – meaning of "fresh in the memory" under s 66(2) of the Evidence Act – where traumatic events are likely to remain fresh in the memory for many years after the events – where complaints were made in similar terms many times over the relevant period – held, no error in admitting complaint evidence under s 66(2) Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1) Evidence Act 1995 (NSW), ss 59, 60, 66, 108(3), 136, 137, 165 Cases Cited: Cabot (a pseudonym) v R [2018] NSWCCA 265 Collins v R [2020] NSWCCA 198 Director of Public Prosecutions (NSW) v J G [2010] NSWCCA 222 Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 Hawi v R [2014] NSWCCA 83 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 Kim v R [2020] NSWCCA 288 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Maughan v R [2020] NSWCCA 51 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Pell v The Queen [2020] HCA 12; 94 ALJR 394 R v Bauer (2018) 266 CLR 56; [2018] HCA 40 R v Gregory-Roberts [2016] NSWCCA 92 R v Jenkyns (1993) 32 NSWLR 712 R v KG (2001) 54 NSWLR 198; [2001] NSWCCA 510 R v McFelin [1985] 2 NZLR 750 R v O'Donoghue (1988) 34 A Crim R 397 R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 R v Tillott (1995) 38 NSWLR 1 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Xu v R [2019] NSWCCA 178 Category: Principal judgment Parties: Tony Kassab (Applicant) Regina (Respondent) Representation: Counsel: J Glissan QC (Applicant) A Moutasallem E Balodis (Respondent)