R v Ali [2000] NSWCCA 177

New South Wales Court of Criminal Appeal

CITATION : R v Ali [2000] NSWCCA 177 revised - 23/02/2001 FILE NUMBER(S) : CCA 60436/99; 60445/99 HEARING DATE(S) : 18 April 2000 JUDGMENT DATE : 17 May 2000

PARTIES : Regina Yeakub Ali JUDGMENT OF : Priestley JA at 49; Foster AJA at 50; Sperling J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0351 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : Mr Scragg for the Appellant Mr Marien for the Respondent Crown SOLICITORS : CATCHWORDS : Criminal law - Use of evidence as to credit as evidence of the fact - Point not taken below - No miscarriage of justice - Evidence to re-establish credit - Rational answer to attack on credibility Evidence Act 1995 LEGISLATION CITED : Criminal Appeal Act 1912, s 6(1) Criminal Appeal Rules 1952, r 4 Hilder (1997) 97 A Crim R 70 Welsh (1996) A Crim R 364 CASES CITED: PAH (CCA 18 December 1998 unreported) Gillard (1999) A Crim R 479 Graham (1998) HCA 61, 157 ALR 404 DECISION : Appeal dismissed.

- 20 - IN THE COURT OF CRIMINAL APPEAL

60463/99 60445/99

PRIESTLY JA FOSTER AJA SPERLING J

Wednesday, 17 May 2000

Regina v Yeakub Ali

JUDGMENT 1 SPERLING J: At a trial in the District Court commencing on 27 April 1999, the appellant was convicted on one count of committing an act of indecency towards a person under the age of sixteen years; one count of indecent assault; and three counts of sexual intercourse without consent. The alleged act of indecency under the first count was that the appellant allegedly masturbated himself in the complainant's presence. The alleged indecent assault was an alleged touching of the breast on the outside of the complainant's nightie. The three counts of alleged sexual intercourse without consent were three separate instances of alleged penile-vaginal intercourse. 2 The complainant, in each case, was the daughter of the appellant's de facto wife. The offences were alleged to have occurred during the period December 1991 to March 1994. The complainant was eleven at the commencement of that period and thirteen at the end of it. She was 18 years of age at the time of the trial. 3 The complainant gave evidence of each of the alleged occurrences on which the charges were based. 4 In the course of cross-examination and re-examination of the complainant, evidence was adduced concerning five interviews: