Elmowy v R [2015] NSWCCA 85

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elmowy v R [2015] NSWCCA 85 Hearing dates: 13 March 2015 Decision date: 06 May 2015 Before: Macfarlan JA at [1]; Simpson J at [53]; Schmidt J at [54] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – sexual intercourse without consent – appeal against convictions – whether jury verdicts unreasonable – s 6 Criminal Appeal Act 1912 – appeal dismissed Legislation Cited: Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW), s 66 Cases Cited: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen [1994] HCA 63; 181 CLR 487 SKA v The Queen [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: Alexander Elmowy (Applicant) Regina (Respondent) Representation: Counsel: G James QC/G D Wendler (Applicant) N J Adams (Respondent)

Solicitors: Saba Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/203487 Decision under appeal Court or tribunal: District Court Jurisdiction: New South Wales Date of Decision: 24 October 2014 Before: McClintock DCJ File Number(s): 2013/203487

Judgment 1. MACFARLAN JA: In 2014 the applicant, Alexander Elmowy, was convicted after trial of two offences alleged in the Indictment in the following terms: "1. Between the 15th day of April 2013 and the 30th day of April 2013, at Bondi in the state of New South Wales, [Alexander Elmowy] did have sexual intercourse with [the complainant] without her consent and knowing that [she] had not consented to the sexual intercourse. 2. On 10 June 2013 at Bondi in the state of New South Wales [Alexander Elmowy] did attempt to have sexual intercourse with [the complainant] without her consent and knowing that [she] had not consented to the sexual intercourse." 1. The applicant seeks leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the ground that the jury's verdicts are unreasonable (see s 6(1) of the Act). In determining such a ground of appeal, this Court must make "an independent assessment of the evidence, both as to its sufficiency and its quality" and determine "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11] and [14]). The "central question" to be answered in making such an independent assessment is whether the court is satisfied that the applicant was guilty of the offences (ibid at [20]). 2. Having made such an assessment, I am, for the reasons stated below, of the view that the Crown proved its case beyond reasonable doubt and that it was therefore open to the jury to convict the applicant.