Behi v R [2024] NSWCCA 89

Behi v R [2024] NSWCCA 89

Even assuming the complainant performed sexual services during the indictment period, that activity was not sufficiently integrated with the alleged offending during chiropractic treatment to form part of a connected set of circumstances under s 293(4)(a)(ii), and the proposed evidence had low probative value compared with the likely distress, humiliation or embarrassment. Its exclusion did not cause practical injustice. On the whole of the evidence, including the complainant's evidence, contemporaneous notes, explanations for inconsistencies, her limited English, and especially the applicant's text messages accepting instances of sexual contact, the jury's guilty verdicts on all 13...

Jurisdiction
Australia
Judgment Date
16 August 2024
Procedural Posture
Criminal Appeal Against Conviction / Application for Extension of Time and Leave to Appeal; Appeal Against Convictions in the District Court of New South Wales
Outcome
Time for filing the notice of appeal extended, leave to appeal granted, and appeal dismissed.
Legal Topics
['sexual Offences' "exclusion of Evidence of Complainant's Sexual Experience or Sexual Activity" 'criminal Procedure Act 1986 (nsw) S 293' 'unreasonable Verdict' 'credibility and Reliability of Complainant' 'miscarriage of Justice']
['criminal Law' 'criminal Procedure' 'evidence' 'appeals'] ['sexual Offences' "exclusion of Evidence of Complainant's Sexual Experience or Sexual Activity" 'criminal Procedure Act 1986 (nsw) S 293' 'unreasonable Verdict' 'credibility and Reliability of Complainant' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Extension of Time and Leave to Appeal; Appeal Against Convictions in the District Court of New South Wales

Legal Issues

  1. 1 ["Whether the trial judge in the first trial erred in excluding evidence concerning the complainant's alleged work at a registered brothel under s 293 of the Criminal Procedure Act 1986 (NSW)." "Whether the exclusion of that evidence caused the trial to miscarry because the jury could not properly assess the complainant's credibility." "Whether the jury's verdicts on all 13 counts were unreasonable or unsupported by the evidence."]

Ratio Decidendi

Even assuming the complainant performed sexual services during the indictment period, that activity was not sufficiently integrated with the alleged offending during chiropractic treatment to form part of a connected set of circumstances under s 293(4)(a)(ii), and the proposed evidence had low probative value compared with the likely distress, humiliation or embarrassment. Its exclusion did not cause practical injustice. On the whole of the evidence, including the complainant's evidence, contemporaneous notes, explanations for inconsistencies, her limited English, and especially the applicant's text messages accepting instances of sexual contact, the jury's guilty verdicts on all 13...

Court Disposition

Time for filing the notice of appeal extended, leave to appeal granted, and appeal dismissed.

Orders

  • ['Extend time for filing notice of appeal to 1 February 2024.' 'Grant leave to appeal.' 'Dismiss the appeal.']