Regina v Habib [2005] NSWCCA 223

New South Wales Court of Criminal Appeal

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

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act s 6(1)

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 CASES CITED: M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 R v R (1989) 18 NSWLR 74

The Crown PARTIES: Meme Habib (Appl)

FILE NUMBER(S): CCA 2005/493

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

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

LOWER COURT JURISDICTION: District Court

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

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

IN THE COURT OF CRIMINAL APPEAL 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.