Khan v R [2022] NSWCCA 157

Khan v R [2022] NSWCCA 157

Although it was well open to the jury to find that the complainant had been sexually assaulted, the cumulative defects in the evidence identifying or recognising the applicant as the perpetrator meant that it was not open to the jury to be satisfied of guilt beyond reasonable doubt. Those defects included the complainant's evidence that the perpetrator was a friend of Aziz when Aziz denied knowing the applicant, uncertainty and changes about who took or was present for exhibit C, the suggestive first picture identification using exhibit D, possible displacement from later sightings and photographs, contamination from family witnesses communicating, weaknesses in the physical description...

Jurisdiction
Australia
Judgment Date
15 July 2022
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal From District Court Convictions
Outcome
Leave to appeal granted; appeal allowed; convictions quashed; verdicts of acquittal entered.
Legal Topics
['unreasonable Verdict' 'identification Evidence' 'recognition Evidence' 'sexual Offences Against Children' 'aggravated Indecent Assault' 'risk of Suggestion and Displacement' 'witness Contamination']
['criminal Law' 'criminal Procedure' 'evidence'] ['unreasonable Verdict' 'identification Evidence' 'recognition Evidence' 'sexual Offences Against Children' 'aggravated Indecent Assault' 'risk of Suggestion and Displacement' 'witness Contamination']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal From District Court Convictions

Legal Issues

  1. 1 ['Whether leave to appeal should be granted for a ground alleging unreasonable verdicts involving a question of fact or mixed law and fact.' 'Whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was the perpetrator of the offences.' "Whether defects in the complainant's identification or recognition evidence, including suggestion, displacement, inconsistent accounts and witness communications, meant the jury ought to have had a reasonable doubt."]

Ratio Decidendi

Although it was well open to the jury to find that the complainant had been sexually assaulted, the cumulative defects in the evidence identifying or recognising the applicant as the perpetrator meant that it was not open to the jury to be satisfied of guilt beyond reasonable doubt. Those defects included the complainant's evidence that the perpetrator was a friend of Aziz when Aziz denied knowing the applicant, uncertainty and changes about who took or was present for exhibit C, the suggestive first picture identification using exhibit D, possible displacement from later sightings and photographs, contamination from family witnesses communicating, weaknesses in the physical description...

Court Disposition

Leave to appeal granted; appeal allowed; convictions quashed; verdicts of acquittal entered.

Orders

  • ['Grant the applicant leave to appeal.' 'Allow the appeal.' 'Quash the convictions of the applicant.' 'Enter verdicts of acquittal.']