Khoury v R [2024] NSWCCA 19

Khoury v R [2024] NSWCCA 19

The refusal to discharge the jury did not occasion a miscarriage of justice because there was no real prospect of prejudice from the incident and any prejudice was wholly remedied by the trial judge's direction, which told the jury that the exchange and the applicant's reaction were not relevant to the issues. The sentencing ground also failed because the sentencing judge was entitled, in the exercise of discretion and consistently with totality, to back-date the sentence by deducting 92 days corresponding to the non-parole period for the AOABH offence, and no error was shown.

Jurisdiction
Australia
Judgment Date
28 February 2024
Procedural Posture
Criminal Appeal Against Convictions for Sexual Intercourse Without Consent and Against Sentence / Application for Leave to Appeal in the Court of Criminal Appeal From District Court Verdict and Sentence
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['sexual Intercourse Without Consent' 'jury Discharge' 'miscarriage of Justice' 'prejudicial Courtroom Incident' 'judicial Directions' 'pre Sentence Custody' 'back Dating Sentence Commencement' 'totality']
['criminal Law' 'criminal Procedure' 'sentencing'] ['sexual Intercourse Without Consent' 'jury Discharge' 'miscarriage of Justice' 'prejudicial Courtroom Incident' 'judicial Directions' 'pre Sentence Custody' 'back Dating Sentence Commencement' 'totality']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Convictions for Sexual Intercourse Without Consent and Against Sentence / Application for Leave to Appeal in the Court of Criminal Appeal From District Court Verdict and Sentence

Legal Issues

  1. 1 ['Whether the trial judge erred in failing to discharge the jury after an exchange between a Crown witness and the applicant in the courtroom, resulting in a miscarriage of justice.' "Whether the trial judge's direction to the jury was sufficient to overcome any potential prejudice arising from the exchange." "Whether the sentencing judge erred in calculating the commencement date of the sentence by deducting 92 days rather than 64 days for the applicant's sentence for assault occasioning actual bodily harm."]

Ratio Decidendi

The refusal to discharge the jury did not occasion a miscarriage of justice because there was no real prospect of prejudice from the incident and any prejudice was wholly remedied by the trial judge's direction, which told the jury that the exchange and the applicant's reaction were not relevant to the issues. The sentencing ground also failed because the sentencing judge was entitled, in the exercise of discretion and consistently with totality, to back-date the sentence by deducting 92 days corresponding to the non-parole period for the AOABH offence, and no error was shown.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']