Khamis v R; Hussain v R [2018] NSWCCA 131

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Khamis v R; Hussain v R [2018] NSWCCA 131 Hearing dates: 20 November 2017 Decision date: 29 June 2018 Before: Gleeson JA at [1] Fullerton J at [87] Button J at [88] Decision: (1) Extend the time for Rafal Raad Khamis to appeal against his conviction. (2) Leave to appeal against conviction is granted to Rafal Raad Khamis. (3) The appeal against conviction of Rafal Raad Khamis is dismissed. (4) Leave to appeal against conviction is granted to Ather Hussain. (5) The appeal against conviction of Ather Hussain is dismissed. Catchwords: CRIMINAL LAW – conviction appeal – conviction of each appellant of one count of aggravated sexual assault – Crimes Act 1900 (NSW), s 61J – where Crown prosecutor opened to jury on more allegations than those about which complainant gave evidence – whether convictions bad for lack of particularity – whether convictions unreasonable or cannot be supported by the evidence – Criminal Appeal Act 1912 (NSW), s 6 (1) – whether evidence insufficient to establish elements of consent and knowledge of absence of consent – Crimes Act, s 61HA – where not guilty verdicts on another count – whether verdicts inconsistent and unreasonable Legislation Cited: Crimes Act 1900 (NSW), ss 61H, 61HA, 61J Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), s 38 Cases Cited: Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 FP v R [2012] NSWCCA 182 Irwin v The Queen [2018] HCA 8 Lazarus v R [2016] NSWCCA 52 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 PA v R [2015] NSWCCA 18 R v Markuleski (2001) 52 NSWLR 82; [2002] NSWCCA 290 R v Murray (1987) 11 NSWLR 12 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 W v R [2014] NSWCCA 110 Category: Principal judgment Parties: Rafal Raad Khamis; Ather Hussain (Applicants) Regina (Crown) Representation: Counsel: J Manuell SC (Applicant Khamis) G Wendler (Applicant Hussain) E Balodis (Crown)