R v Houda [1999] NSWCCA 372

New South Wales Court of Criminal Appeal CITATION : R v Houda [1999] NSWCCA 372 FILE NUMBER(S) : CCA 60070/99 HEARING DATE(S) : 22 November 1999 JUDGMENT DATE : 22 November 1999

PARTIES : Fady Houda (Appellant) Regina (Respondent) JUDGMENT OF : Spigelman CJ at 19; Dunford J at 1; Hidden J at 20

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0057 LOWER COURT JUDICIAL OFFICER : Viney DCJ

COUNSEL : P Byrne SC (Appellant) M Grogan (Respondent/Crown) SOLICITORS : Murphy's Lawyers Inc (Appellant) SE O'Connor (Respondent/Crown) CATCHWORDS : CRIMINAL LAW - evidence - use of lies as showing a consciousness of guilt - proper directions. ACTS CITED : Crimes Act 1900, s 61B(1) Edwards v The Queen (1993) 178 CLR 193; CASES CITED: R v Heyde (1990) 20 NSWLR 234; R v Tangye (1997) 92 A Crim R 545; R v ST (1997) 92 A Crim R 390. DECISION : Appeal dismissed, conviction and sentence confirmed.

IN THE COURT OF CRIMINAL APPEAL

60070/98

SPIGELMAN CJ DUNFORD J HIDDEN J MONDAY, 22 NOVEMBER 1999 R v Fady HOUDA JUDGMENT 1 DUNFORD J: This is an appeal by Fady Houda against his conviction for sexual assault without consent contrary to s 61B(1) of the Crimes Act 1900 as it stood at the relevant time. 2 Briefly, the Crown case was that on 6 May 1989 the complainant, who was then aged 20, attended the Punchbowl RSL Club with a group of friends with whom she sat at a table, talking to her friends and at times drinking and dancing. Whilst dancing with a friend she noticed a man dancing in a circle around her. She did not know him. He asked her if she would like to go outside for a talk and she agreed. There was no dispute at the trial that that man was the appellant. 3 The two of them went outside and walked to the bottom of a staircase outside the club. The appellant put his arm round the complainant's shoulders and they walked along the side of the club. Shortly after, he lent the complainant up against a fence, and asked her would she like to be his boyfriend (sic) for the night, to which she replied, "No, I've already got a boyfriend." The appellant then kissed the complainant and gave her a love bite. He then led her further down the side of the club, past a bowling green to a small veranda on a church. 4 A short time later - and I will not go into the intervening details - he pushed her down onto the ground and took his clothes off. He tried to remove the complainant's underpants and she tried to pull them back up. Shortly after that the appellant had sexual intercourse with her. The complainant said, "Stop, you are hurting me" and tried to get away from him by grabbing onto a fence and pulling away from him. She felt herself being dragged along the ground. She repeated, "Stop, you are hurting me." She tried to yell out for help, but the appellant said, "Shut up or I'll shoot you," and he put his hand over her mouth. 5 After sexual intercourse was completed, he said to her, "If you tell anybody, I know where you live, I'll come after you with a gun and shoot you." She said she would not tell anybody and walked quickly back to the club. The appellant followed behind her. When she arrived back at the club she went to the ladies toilet, her elbow was sore and there was blood on her underpants. She then told her friends what had happened. The complainant and her friends left the club and they saw the appellant and his friends outside laughing in a red car. 6 The complainant's friends took her home where she told her mother what had happened. The police arrived. She was taken to St George Hospital where she was medically examined and the doctor found evidence consistent with the facts as she related them, including evidence of abrasions on her left elbow and her buttocks, and a bruise consistent with a love bite on the front of her neck. 7 On 5 June 1989 Sergeant Wynne spoke to the appellant. He questioned him about the alleged sexual assault and the appellant replied, "It wasn't me." He said he did not frequent the Punchbowl RSL Club and he denied that he had danced with the complainant. When the allegation of sexual intercourse was put to him he said, "I wasn't there." When informed that the complainant had told her attacker she was a virgin, the appellant said, "I've had lots of virgins. I'm not saying any more." 8 Later that day, he took part in a typed record of interview. In the course of that record of interview, he specifically said he did not recall attending a disco at the Punchbowl RSL on Saturday 6 May 1989 (A.9); he did not know a person with the complainant's name (A.10); he had attended the RSL on the "3rd of the 2nd, he did not remember, somewhere around that time and a few times from years ago when he used to live around the area" (A.12); he did not know anything about a suggestion that he had been at the club at about 12.15 am on Sunday, 7 May, and that he had left in the company of the complainant (A.13); and he did not know anything about going to the area where intercourse had taken place and having non-consensual intercourse with the complainant, (A.14). The sergeant was not cross-examined. 9 Later on and prior to his trial, evidence became available to the Crown which was led at the trial that a check of the Punchbowl RSL's register of visitors indicated that the appellant had attended the club on 6 May 1989 and DNA testing of fluids recovered from vaginal swabs of the complainant could have originated from the appellant. 10 At his trial, the appellant admitted that he had sexual intercourse with the complainant, but stated that such intercourse was consensual. He said that after dancing with the complainant, the complainant kept looking and smiling at him. She then came over and asked for another dance, which he accepted. It was hot dancing and they decided to go outside for a walk, and whilst outside they hugged each other, and then took each others clothes off and had consensual sex. 11 Although Sergeant Wynne had not been cross-examined, the appellant claimed that when spoken to by the police he said, "No, it wasn't rape" and "I didn't do it". In cross-examination, he stated that he told lies to the police because he was a Muslim and did not want his mother to know that he had had sexual intercourse with the girl before marriage. 12 The only ground of appeal relied on was in relation to the directions by the trial judge in his summing-up on the use which the jury might make concerning lies told out of court. In relation to this issue his Honour said: "As to telling the police all the lies, he said he was worried about his family. He was thinking about his mother. He said his mother had come with him to the police station and he just did not want to admit that he had actually had intercourse with a woman before he was married. Members of the jury, the Crown Prosecutor made reference to the fact of the accused telling lies to the police and argued to you that that is a factor you can take into account, first of all, as to his general credibility when he gives evidence; and secondly, as showing that the reason he lied to the police was because he knew he was guilty of the offence. If a person does tell lies in circumstances such as that, it is open to the jury to draw that conclusion that the reason they told lies in those circumstances was because they wanted to avoid being implicated in the offence. But before you jump to that conclusion of course, you bear in mind this, that the accused was 18 years of age, he may well have been in some sort of state of panic, or concern. We all know that people tell lies for all sorts of reasons. So you would have to consider that carefully before you jump to the conclusion that the reason he told lies was because he knew he was guilty of having sexual intercourse with [the complainant] without her consent." 13 Later, in summarising defence counsel's submissions to the jury, his Honour said: "As to this matter of his having told lies to the police, you would bear in mind he was 18 years old, he was fearful his mother would find out he had had sex, which was something he would be concerned that she did not know, and he did frankly concede here that he had told the lies and you will find there is nothing much in that aspect of the proceedings." 14 At the conclusion of the summing-up, the Crown Prosecutor (not defence counsel) sought a further direction that telling lies on its own was insufficient to prove the charge against the accused, and his Honour further directed the jury as follows: "There is just one matter counsel want me to bring to your attention. When I was giving you that direction concerning the fact that the accused admitted he told lies to the police and I said to you that you can take that into account if you are convinced that the reason he told lies was because he believed he was guilty of the offence. But I do not mean by that that if you are satisfied he told lies then that proves the charge. It is just a matter you can take into account. If you are satisfied he told lies to the police, as he admitted he has, if you are satisfied he told lies because he knew he had done the wrong thing, well then that is a matter you take into account in accordance with the rest of the evidence, but of itself it does not prove the charge. You simply use that as one factor in the case."