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[2026] NSWCCA 100
Court of Criminal Appeal (NSW)
2026-07-06
Kirk JA at [1]; Yehia J at [2]; Sirtes J at [99].
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kabbout v R [2026] NSWCCA 100
Hearing dates: 11 May 2026
Date of orders: 6 July 2026
Decision date: 06 July 2026
Before: Kirk JA at [1];
Yehia J at [2];
Sirtes J at [99].
Decision: (1) Extend the time for the filing of the applicant’s notice of appeal to 20 January 2026.
(2) Leave to appeal granted.
(3) Appeal dismissed.
Catchwords: CRIME – Appeals – appeal against conviction – unreasonable verdict – aggravated sexual assault in company – joint criminal enterprise – where Crown alleged applicant participated in joint criminal enterprise by being present, intentionally assisting and encouraging co-accused to commit the crime – whether proof of “directorial acts” was necessary to prove the existence of a joint criminal enterprise or the in company element
CRIME – Appeals – appeal against conviction – unreasonable verdict – aggravated sexual assault in company – whether open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt – inconsistencies in complainant’s evidence – where jury acquitted applicant of other counts involving offending against same complainant – whether open to jury to accept the complainant’s evidence – where advantages of the jury were significant – verdicts not unreasonable
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW), s 61J(1), 91P
Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
Criminal Procedure Act 1986 (NSW), s 293A
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3), 3.5(2)(a), 3.5(5)
Cases Cited: Abdallah v R [2019] NSWCCA 294
Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Decision Restricted [2025] NSWCCA 210
Jha v The King [2026] NSWCCA 55
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348 at 370; [1996] HCA 35
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
The King v ZT (2025) 281 CLR 137; [2025] HCA 9
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
ZT v R [2025] NSWCCA 193
Category: Principal judgment
Parties: Adam Kabbout (Applicant)
Rex (Respondent)
Representation: Counsel:
A Francis (Applicant)
C Curtis with E McGinness (Respondent)
Solicitors:
SANS Law (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2022/00176095
Publication restriction: Pursuant to section 578A of the Crimes Act 1900 (NSW), publication of the name of, or any matter which could identify, the victim is prohibited.
Pursuant to section 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the victim’s youngest sister, who was a child at the time the offences were committed, is prohibited.
[This headnote is not to be read as part of the judgment]
Mr Adam Kabbout (the applicant) sought leave to appeal, out of time, his convictions following a trial before Flannery SC DCJ (the trial judge) and a jury between 6 August 2024 and 3 September 2024. The applicant was found guilty of four counts of aggravated sexual assault in company committed against a single complainant alongside co-accused Omar El-Sayed and Mohammed Ali (counts 1, 3, 9 and 11). The jury acquitted the applicant of two further counts of the same offence allegedly committed against the same complainant, with a different co-accused, Rami Katlan (counts 5 and 7).
The Crown case at trial was not that the applicant had sexual intercourse with the complainant. Rather, the Crown case was that there was a joint criminal enterprise between each co-accused to sexually assault the complainant, in which the applicant participated by being present, intentionally assisting and encouraging his co-accused to commit the crime.
On 1 November 2024, the applicant was sentenced to an aggregate term of 6 years and 6 months’ imprisonment, commencing on 23 July 2023, with a non-parole period of 3 years and 3 months expiring on 22 October 2026.
The applicant’s sole ground of appeal against his conviction was that the jury’s verdicts of guilty were unreasonable. The applicant relied, inter alia, on an asserted failure of the Crown to prove, as a matter indispensable to the applicant’s guilt, “directorial acts” raised in the Crown’s opening address, as well as asserted inconsistencies in the complainant’s evidence and other matters said to impugn the complainant’s credibility.
The Court (per Yehia J, Kirk JA and Sirtes J agreeing) held, granting an extension of time and leave to appeal, but dismissing the appeal:
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; The King v ZT (2025) 281 CLR 137; [2025] HCA 9, applied.
Abdallah v R [2019] NSWCCA 294, cited.
KIRK JA: Having reviewed the evidence at trial, I agree with the orders proposed by Yehia J and with her Honour’s reasons. I, too, have watched and listened closely to the video taken by Mr Rami Katlan of Mr Ali, as the applicant’s counsel requested that we do. I heard the complainant saying “No, I don’t want to”. At the least, taking account of the advantage held by the jury in assessing this material practically and as a group, it was certainly open to the jury to have so concluded. Like Yehia J, I consider that the Crown case was reasonably strong. The jury had the benefit of seeing and hearing the complainant and the applicant, amongst others, give evidence. It was well open to the jury to reach the verdicts against the applicant which they did.
YEHIA J**:** The applicant, Adam Kabbout, stood trial before a jury in the District Court for six counts of aggravated sexual assault in company alongside co-accused Omar El-Sayed, Rami Katlan (hereafter referred to as Rami to distinguish him from his brother, Yazan Katlan, who was called as a witness but not charged) and Mohammed Ali. Each of the counts involved the same complainant, CM. The applicant was found guilty of four of those counts, being the counts alleged to have been committed in the company of Mr El-Sayed and Mr Ali. The applicant was acquitted of the two counts alleged to have been committed in the company of Rami, though Rami was convicted of one alternative count of sexual assault simpliciter (with which the applicant was not charged in an accessorial capacity or otherwise).
On 1 November 2024 the trial judge, Flannery SC DCJ, sentenced the applicant to an aggregate term of 6 years and 6 months’ imprisonment, with a non-parole period of 3 years and 3 months. Due to onerous bail conditions imposed upon the applicant following his arrest (which her Honour took into account as a period of quasi-custody) the applicant’s sentence commenced on 23 July 2023. The non-parole period will expire on 22 October 2026.
The applicant has sought leave to appeal all of his convictions, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”), on the sole ground that the verdicts of guilty are unreasonable. The applicant also seeks leave to appeal out of time.
For the reasons that follow, the appeal ground is not made out. Leave to appeal should be granted and the appeal should be dismissed.
These reasons are structured as follows:
(a) the application for an extension of time to appeal at [7]-[11]; (b) background and the cases put at trial at [12]-[38]; (c) legal principles for unreasonable verdict at [39]-[47]; (d) the directions given to the jury at [50]-[54]; (e) the applicant’s submissions as to unreasonable verdict at [55]-[74]; (f) the respondent’s submissions at [75]-[81]; (g) consideration at [82]-[97]; and (h) conclusion and orders at [98].
The applicant was sentenced on 1 November 2024. A notice of intention to appeal was filed on 15 November 2024 with effect for 12 months after its filing date: Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3) and 3.5(2)(a). The notice of appeal was not filed until 20 January 2026, some two months out of time. Accordingly, the applicant seeks leave pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The Court’s discretion to grant leave pursuant to r 3.5(5) is wide and “is to be exercised by consideration of what the interests of justice require in the particular case”: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [30].
An explanation for the delay was given by the applicant’s solicitor, Sara Black, in an affidavit dated 16 January 2026. According to that affidavit, shortly after filing the notice of intention to appeal the applicant ordered from the Court the trial transcripts and exhibits. On or about 18 March 2025, the applicant obtained all relevant transcripts and exhibits. Counsel subsequently began preparation of submissions in support of the applicant’s appeal. On or about 23 July 2025, Ms Black was informed that the applicant’s co-accused (the affidavit gives some indication that this was Mr El-Sayed, though it is not expressly stated) had filed an appeal, and a copy of the submissions and grounds of appeal had been provided to her. The applicant’s counsel required additional time to consider these submissions.
Ms Black was later notified that Rami was also intending to file an appeal, and upon consultation with Counsel determined that she would not finalise the submissions and file the applicant’s appeal until all grounds of appeal and submissions of the co accused were considered.
In December 2025, Ms Black was contacted by solicitors for Rami and Mr El-Sayed and was notified that they were intending to withdraw their appeals. Following that, Ms Black advised counsel and moved forward with finalising the applicant’s submissions and grounds of appeal.
The delay was not significant in duration and was attributable to attempting to achieve consistency with any appeals of the co-accused. The Crown did not oppose a grant of leave and will not suffer any relevant prejudice if leave is granted. There was not said to be any adverse effect on the victim or community generally if leave were to be granted. For those reasons, time should be extended to permit the application for leave to appeal to be brought pursuant to r 3.5(5).
| Count | Charge | Verdict for applicant | Verdict for co-accused | | Charges arising out of sexual acts committed by Omar El-Sayed | | 1 | Aggravated (in company) sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW) (“Crimes Act”) Particulars: Fellatio | Guilty | Guilty | | 3 | Aggravated (in company) sexual intercourse without consent contrary to s 61J(1) of the Crimes Act Particulars: Penile/vaginal | Guilty | Guilty | | Charges arising out of sexual acts committed by Rami Katlan | | 5 | Aggravated (in company) sexual intercourse without consent contrary to s 61J(1) of the Crimes Act Particulars: Fellatio | Not guilty | Not guilty | | 7 | Aggravated (in company) sexual intercourse without consent contrary to s 61J(1) of the Crimes Act Particulars: Penile/vaginal | Not guilty | Not guilty | | Charges arising out of sexual acts committed by Mohammed Ali | | 9 | Aggravated (in company) sexual intercourse without consent contrary to s 61J(1) of the Crimes Act Particulars: Fellatio | Guilty | Guilty | | 11 | Aggravated (in company) sexual intercourse without consent contrary to s 61J(1) of the Crimes Act Particulars: Penile/vaginal | Guilty | Guilty |
The applicant and the co-accused each pleaded not guilty to the counts set out above. On 6 August 2024, their joint trial commenced in the District Court before Flannery SC DCJ and a jury. The applicant and complainant both gave oral evidence, as did Yazan and a number of complaint witnesses. None of the co-accused gave evidence. There was objective evidence tendered including CCTV footage of the street taken from the complainant’s neighbours, DNA evidence, and a short video of Mr Ali and the complainant filmed by Rami.
On 3 September 2024, the jury returned its verdicts as indicated above. While Rami was found not guilty of the principal charge, he was convicted of one alternative charge of sexual assault simpliciter with which the applicant was not charged in an accessorial capacity or otherwise. Rami also entered a plea of guilty to a further charge of recording an intimate image without consent contrary to s 91P of the Crimes Act.
In around August 2021, the applicant and complainant matched through the dating application Tinder. At that time, the applicant was 24 years old and the complainant was 22.
They initially communicated with each other through Tinder but then moved their interactions to Snapchat. They would message each other once or twice a week. They had not met each other in person until the time of the conduct subject of this appeal.
Applicant That’s what they are into
CM actually?!!?!
Applicant Yeah
CM eep
maybe not tbh
Applicant It’s only 3 guys
CM idk them sorry HAHAH
Applicant They look like me lol
CM hmmm
Applicant Up to you not stress
CM hahahaha erm tempting but maybe not hm
Applicant I’ll come
Then
CM tn???
Applicant Yeah
Be there in 20
CM Wait lol I still need to walk home
Applicant Yallah
CM Zzzz
ok ok
Applicant See you soon
CM Oki
u got condoms ??!!
Applicant Na do you
CM what size r u lol
Applicant Large
CM I’ll check when I get home
But I think it’s regular
Applicant Regular can work
CM Do u smoke?
Applicant Yeah
CM Okay good bc I don’t fuck sober
Applicant Smoke then
CM ur not ???
Applicant Maybe
CM hahaha wdym
Applicant How far you
CM just got to the station
Probs 15
Applicant Offt Yallah
CM don’t make it 20
Applicant I’m here
CM Already???
Did u drive??
Applicant Yeah
CM lol and u didn’t even offer me a ride
HAHAHAHAHAHA
Applicant Sorry ahhaha
Where u at
CM OkayWya
Applicant Send me number house
CM I’m not on Allegra ave
It’s just easier to park there
Applicant Oh okay
CM Do u see the group of houses together
I’m out in the street
When the complainant said “hahahaha erm tempting but maybe not hm”, she meant no more than to politely decline what she understood to be the applicant’s suggestion of engaging in sexual conduct with three men. On her evidence, she had never previously exchanged messages with the applicant about group sex.
The applicant and complainant met each other on a street outside of her unit and then walked through the front door together. She locked the door behind them. They went straight into the complainant’s bedroom and engaged in small talk and possibly kissing. The complainant then had a shower in her ensuite bathroom (which was accessible only through the bedroom) of approximately 10-15 minutes duration as she wanted to feel clean.
After the complainant got out of the shower and exited the ensuite, the applicant was no longer in her bedroom. She went to look outside of the bedroom and was surprised to find the applicant in her unit with each of the co-accused and Yazan (who were all unknown to her). She went back into her bedroom and was followed by the applicant. She asked him, “[w]ho are they what are they doing here” and he told her “[i]t’s okay, don’t worry about that”. She said, “I didn’t want them here”.
The applicant left the room and the complainant could hear him speaking with the men outside. He returned to the bedroom with Mr El-Sayed, moved closer to the complainant, and told her to “[s]uck him off”, referring to Mr El-Sayed. The complainant was scared and said she didn’t want to do anything. The applicant said, “just do it”. She proceeded to perform oral sex on Mr El-Sayed for a few minutes (count 1). At some point while she was performing oral sex, the applicant left the room. Mr El-Sayed then pushed the complainant onto her back and had penile/vaginal intercourse with her (count 3). During this time the complainant was saying that she “didn’t want to do this”.
After a few minutes Mr El-Sayed stopped and went into the ensuite bathroom and the applicant returned to the bedroom. The complainant told the applicant she “wanted them to leave” and “didn’t want to keep going”. The applicant said, “not yet”. Mr El-Sayed then left the bathroom and bedroom and Rami entered the bedroom. The complainant performed oral sex on Rami (count 5) before having penile/vaginal intercourse with him (count 7). It was very similar to what happened with Mr El-Sayed, although the complainant could not clearly remember when the applicant left the room. During the intercourse with Rami the complainant was crying.
After a few minutes Rami stopped and left the bedroom. Subsequently, the applicant entered the bedroom with Mr Ali. The complainant was still crying when they entered the room. Neither Mr Ali nor the applicant said anything. The complainant performed oral sex on Mr Ali, at some point during which the applicant left the room (count 9). Mr Ali then pushed her on to the bed and had penile/vaginal sex with her (count 11). She said, “I didn’t want to do this” and continued crying. In relation to the conduct involving Mr Ali, at one point Rami filmed, from outside of the bedroom (through the open bedroom door), Mr Ali pulling the complainant’s head towards his erect penis. That footage was in evidence as Exhibit X. The complainant said that on the recording she can be heard saying “no, I don’t want to”.
After a few minutes Mr Ali stopped and left the bedroom and the applicant came back inside. The complainant told him, “I don’t – I don’t want to do it any more, can you please leave?”. He said, “[o]kay, your loss” and then he and the other men left through the front door.
The complainant gave evidence that the applicant would come in and out of the room and watch her and the co-accused during each of the sexual acts. Yazan gave evidence that the applicant would stand around the living room, close to the bedroom door, while each of the other men were inside. The complainant did not consent to any of the sexual acts with the co-accused and said something similar to “no” to each of them.
The Crown drew attention to the small size of the complainant’s apartment. Exhibit F at trial was a video walkthrough of the apartment, which demonstrated the immediate proximity of the bedroom to the living room. The Crown submitted to the jury that even on Yazan’s evidence the applicant’s proximity to the bedroom enabled him to control what was happening inside.
On 17 June 2022, the applicant was arrested and interviewed by police. The interview was electronically recorded. In that interview the applicant lied to police, saying that he was not present in the suburb where the complainant’s unit was located in the early hours of the morning on 16 April 2022, that he did not know the complainant, and that the co-accused were not with him that evening. He accepted that he had lied in this interview in his evidence at trial. The Crown sought to rely upon the lies told in this police interview as evidence of consciousness of guilt.
On the evening of 15 April 2022, the applicant, co-accused, and Yazan were in Rami’s car. The applicant was looking at messages from the complainant on Snapchat. One of the men in the car asked him who he was talking to. He told them that he was talking to a girl that he was meant to hook up with, and he indicated she might be interested in group sex. The applicant believed as much because on his evidence the complainant had conveyed that to him in messages sent a couple of months earlier. Mr El-Sayed, Rami, and Mr Ali indicated to the applicant that they would be interested in having group sex with her. The applicant sent the complainant a Snapchat message or messages which preceded those set out at [17] above, saying something to the effect of, “they might be down for group sex, to hook up with [the complainant]”. This was the first time he communicated anything to her about being able to arrange group sex. The applicant did not intend to participate in any group sex himself, and neither did Yazan.
When the complainant replied, “hahahaha erm tempting but maybe not hm”, the applicant understood it to be a polite “no” and told the others in the car “[s]he’s not up for it” and “[j]ust don’t worry about it for now. I’ll just go myself”. They drove to the complainant’s unit to drop the applicant off. Before he left the car, the applicant told them “[w]ait for me. I’m going to go down. I’ll ask her again. If she’s not interested, I’ll let you know”. The others agreed and asked the applicant to keep them updated. The applicant exited the car leaving the others to park it nearby. CCTV footage (Exhibits AB and AC) indicated this occurred at around 11:59pm.
The applicant and complainant met each other outside, nearby her unit. He greeted her. She told him to “[s]tand behind me as you’re walking in, and don’t make any noise”. She also said, “[s]tay behind me at a distance, though”. He followed her for about one or two minutes to her unit before she let him in. They engaged in small talk in the kitchen area for three or four minutes before the complainant started walking to the bedroom and gestured at the applicant to follow her. He did so while they continued talking. The applicant told her that he was going to message the guys to let them know that he was inside. The complainant said, “[t]hat’s fine” and the applicant did so. The applicant and complainant continued chatting and then they sat on the edge of the bed.
The complainant made a “sudden” move, further described by the applicant as “a sexual, physical move” straight to his belt, which he was not expecting because there had been “no talk of sexual stuff” during the conversation in her unit, and no kissing. He reacted by gesturing off a bit to the side and telling the complainant “I’m not feeling it tonight, I’m sorry”. He gave evidence that he found the complainant to be different from what he was expecting based upon their Snapchat interactions, where she appeared “to be very open and fun” whereas in person he found her to be “very quiet, very awkward”. He also found it “weird” when she asked him to walk behind her to the unit.
The applicant looked at his phone to “break the awkwardness” and then told the complainant “[l]ook, do you still want the guys to come, or should I just go?”. She told him to “bring the boys down”. The applicant sent a message to that effect to the co-accused and Yazan in their group chat. The applicant then used the bathroom, washed his face, and took off his jumper. The complainant subsequently used the bathroom for approximately two minutes but did not have a shower. The applicant also had a call with Mr El-Sayed over Snapchat while the complainant was in front of him, telling Mr El-Sayed something along the lines of the complainant “wants you guys, and come down” and giving him directions to the unit.
CCTV of a neighbouring property captured Mr El-Sayed walking alone in the direction of the unit at around 12:12-12:13am. He arrived at the unit about 10-15 minutes after the applicant messaged the group chat. The applicant let him in through the front door. The complainant and Mr El-Sayed proceeded to the bedroom straight away and were speaking there, including Mr El-Sayed asking if she had a condom, to which she said “[y]eah”. The applicant was standing in the doorway to the bedroom. The complainant and Mr El-Sayed started kissing. The applicant partially closed the bedroom door and went to sit at the dining table because he “didn’t want to see any of that”.
Mr El-Sayed and the complainant were in the bedroom for a maximum of ten minutes. During this time, between 5-10 minutes after Mr El-Sayed arrived, the other co-accused and Yazan entered the unit. CCTV of a neighbouring property captured them walking towards the unit at around 12:18am. As the bedroom door had been left slightly ajar, they and the applicant saw Mr El-Sayed and the complainant having penile/vaginal sexual intercourse. On his recollection he may have stood near the entrance to the bedroom door for a couple of seconds, and then went to sit in the living room, on the side of the couch furthest from the bedroom door. He wasn’t really able to hear anything in the living room as the other men were being a bit loud, though he could hear very faint noises of moaning from the complainant and then the shower turning on for a little bit.
Shortly after, Mr El-Sayed came out of the bedroom in his underwear and Mr Ali went into the bedroom. Mr Ali remained in the bedroom for around 5-10 minutes. During that time the applicant was seated in the living room and did not move from that position. He could not see any physical contact between them from where he was seated, however, he could hear moaning noises.
During this time, Rami stood at the bedroom door for a little bit and then entered the bedroom for about a minute. He then walked out, and then Mr Ali came out. Yazan went in to use the bathroom. After a maximum of two minutes, he walked back out saying “I didn’t use the bathroom. It wasn’t – fucking gross. Let’s go”, after which the others said, “[y]eah, let’s get out of here”. The applicant thought they were a bit loud about that and a bit rude. The other men left the unit, and then the applicant went into the bedroom and said to the complainant, “[a]re you all good? We’re leaving now”, trying to be a bit more polite. The complainant gave him a death stare and told him to “fuck off”. The applicant then left and caught up with the others on their way to the car. CCTV evidence recorded the men having left by approximately 12:35am. It was an agreed fact at trial that each accused was present at the unit at some period between midnight and 12:40am.
At the car, the applicant felt “very weird” about the complainant’s reaction, and asked Rami to photograph his Snapchat messages in order to have a record to prove that he had been invited to her place and to prove that nothing went wrong. The photographed messages are those set out at [17] above.
In relation to the lies the applicant told in his police interview on 17 June 2022, described at [27] above, the applicant attributed his conduct to being scared and in shock following the circumstances of his arrest, which he described as a “raid…at 3am in the morning in front of my family”. Images tendered on behalf of the applicant showed that heavily armed police had effected the arrest at his family home (Exhibit 5).
The applicant submitted on appeal that the jury should have had a reasonable doubt as to whether a joint criminal enterprise existed in which the applicant participated and as to whether the applicant was in company with the co-accused. The nub of the applicant’s case was that such a finding should have been reached because the complainant’s evidence which implicated the applicant was inconsistent with what she had told police earlier and with complaint evidence, which should have given rise to a reasonable doubt as to her testimony on key events. The applicant relied heavily on the complainant not coming up to proof on matters raised in the Crown’s opening address (the “directorial acts”) and made submissions in relation to other matters said to impugn the Crown case and the complainant’s credibility.
The principles applicable to an unreasonable verdict ground of appeal were not in dispute. This Court is to allow an appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence: Criminal Appeal Act, s 6(1).
The seminal authority on unreasonable verdict appeals is M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (“M v The Queen”), where Mason CJ, Deane, Dawson and Toohey JJ held the following (at 493):
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” (Footnotes omitted.)
“… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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...” (Footnotes omitted.)
“[9] … the jury’s advantages are not confined to witness testimony but may extend to all of the evidence adduced at trial. The advantages spoken of are the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial…
[10] … the appellate court is required to give ’full allowance’ to the advantages of the jury in seeing and hearing the evidence when assessing whether those advantages are capable of resolving any doubt the appellate court holds about the appellant’s guilt. Whether the evidence is adduced in the form of witness testimony or recorded conversations or recorded interviews, the advantages may extend to an assessment of matters such as: the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers). The jury can consider those matters possessing a breadth of understanding of how different people speak and behave in such circumstances that a judge may not have.” (Footnotes omitted.)
It is important to have regard to the complete exposition of the test set out above. Simply asking whether it was “open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty”, conceals an underlying controversy as to when it is “open to the jury to be so satisfied”: ZT v R [2025] NSWCCA 193 at [56] (Dhanji J, Bell CJ and Yehia J agreeing as to the relevant test) quoted in Jha v The King [2026] NSWCCA 55 at [116] (Leeming JA, Yehia and Sweeney JJ).
The question is “one of fact which the court must decide by making its own independent assessment of the evidence”: M v The Queen (at 492), quoted in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (“Dansie”) at [8]. In resolving the question of fact, “the burden of persuasion that appellate interference is required, in what is otherwise the jury’s province, is upon the person who impugns a jury’s verdict”: MacKenzie v The Queen (1996) 190 CLR 348 at 370; [1996] HCA 35. Additionally, in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (“Pell”) at [39], it was said that this Court’s enquiry as to unreasonable verdict:
“… proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”
In considering whether the jury’s verdict was unreasonable, “the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”: M v The Queen at 493, quoted in Dansie at [9].
Further, it was explained in The King v ZT at [11] that M v The Queen:
“… requires that the appellate court undertake an ‘independent assessment’ of the sufficiency and quality of the ‘whole of the evidence’. However, that assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal...” (Footnotes omitted.)
“[46] … in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
…
[48] Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal …” (Footnotes omitted.)
“An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.” (Footnotes omitted.)
(a) the applicant and the relevant co-accused for any particular count were parties to a joint criminal enterprise to have sexual intercourse with the complainant without her consent, knowing that she was not consenting, in circumstances of aggravation being that they were in the company of each other; (b) they each participated in the joint criminal enterprise; (c) the relevant co-accused had sexual intercourse with the complainant; (d) the sexual intercourse was without the complainant’s consent; (e) the relevant co-accused knew it was without the complainant’s consent; and (f) the applicant and the relevant co-accused were in the company of each other.
“Joint criminal enterprise
The law is that where two or more people carry out a ‘joint criminal enterprise’**, that is, an agreement to carry out a particular criminal activity, each is held to be criminally responsible for the acts of another participant in carrying out that enterprise or activity. This is so regardless of the particular role played in that enterprise by any particular participant. The Crown must establish both the existence of a joint criminal enterprise and the participation in it by each of the accused.
A joint criminal enterprise exists where two or more people reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.
The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime, the participants have agreed that the crime should be committed by any one or all of them.
The circumstances in which two or more people are participating together in the commission of a particular crime may themselves establish that at some point in time, an agreement has been reached between them that the crime should be committed. For example, if two people are at the very same time punching a third person, a jury could infer or conclude that they had agreed to assault that person.
A person participates in the joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and, with knowledge that the crime is to be or is being committed, by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed, and a readiness to give aid if required, is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally ‘guilty’ of the crime, regardless of the part played by each in its commission.
It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing that crime. All of the participants in the enterprise are equally ‘guilty’ of committing the crime regardless of the actual part played by each in its commission.
The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the essential facts or ingredients, which make up that crime, was committed, regardless of who actually committed them.
Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that he was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons…
The accused were in company
An offence is committed in company if two or more people are present and share the same purpose, even if [CM] is unaware of the other people.
The Crown must prove that the coercive effect of the two people operated, either to embolden or reassure the person, or to intimidate [CM] into submission. The perspective of [CM] being confronted is relevant, but does not solely decide the issue.”
“In respect of the in-company aspect, the Crown says you would infer from what Adam did at the time each of the other accused went into the room, and in leaving the door open and wandering in and out, that he did these things to reassure each of the other accused as they were going in to have sexual intercourse with [CM] and/or to intimidate [CM] by directing her, for example, to do certain things, and at the time he did these things, he shared a common purpose with Mr El-Sayed, Mr Katlan, and Mr Ali at the relevant time.
For the same reasons the Crown says you would be satisfied beyond reasonable doubt that there was a joint criminal enterprise in respect of counts 1 and 3 between Mr Kabbout and Mr El-Sayed, in respect of counts 5 and 7, between Mr Katlan and Mr Kabbout, and in respect of counts 9 and 11, between Mr Kabbout and Mr Ali, to have sexual intercourse with [CM] without her consent, knowing that she did not consent whilst in company, and that Mr El-Sayed, Mr Katlan, and Mr Ali participated in each joint criminal enterprise by having sexual intercourse with [CM], and Mr Kabbout participated in each joint criminal enterprise by being present, intentionally assisting and encouraging Mr El-Sayed in respect of counts 1 and 3, Mr Katlan in respect of counts 5 and 7, and Mr Ali in respect of counts 9 and 11 to commit the crime.”
The passages extracted above required the jury to come to its verdict on the basis that knowledge of the crime that was to be or was being committed was the requisite mens rea in establishing a joint criminal enterprise. That was so notwithstanding that at least advertent recklessness is also capable of establishing a joint criminal enterprise to commit the offence of sexual intercourse without consent: Decision Restricted [2025] NSWCCA 210 at [176]-[183]; [188]-[189]. The trial judge saw fit in the circumstances of the way the Crown had put its case, and after hearing submissions from the parties on that point, to direct the jury to apply the higher standard.
The parties took no issue with that direction in this appeal and accepted that this Court should apply the same standard in its consideration of the reasonableness of the verdicts. That approach is appropriate having regard to s 6(1) of the Criminal Appeal Act, which requires the Court to allow an appeal “if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence”. That inherently requires this Court to evaluate the reasonableness of a jury’s verdict in the context of the trial, including the directions given to the jury by the trial judge.
“…As you’ll see, count 1 relates to Omar El-Sayed and Adam Kabbout. The first count, this is based on the complainant’s evidence, is that after they had that exchange after she came out of the shower, he left the bedroom and closed the door behind him. She said she could hear Mr Kabbout saying, ‘Come on, come on’.
A couple of minutes later Kabbout opened the door and came in with the co-accused Omar El-Sayed and the door was left slightly ajar, Kabbout nudged El-Sayed in front of the complainant to a point where El-Sayed was literally standing over her. He, El-Sayed, pulled his pants down and took his penis out and he said that she was shaking her head and Kabbout said to her ‘Just suck it’. The accused then, that is Mr El-Sayed, came in close and used his hand to pull her head towards his penis, which was not fully erect. She kept shaking her head but then performed fellatio. A short time later El Sayed pulled away.
That, you will see, relates to the acts which are the subject of [count] 1, and the alternative, count 2. If I can just clear up something on the question of law, it’s the charge [which] relates to sexual intercourse. Well, that is sexual intercourse if an act of oral or penile penetration. That’s the basis of that, that amounts to that particular count. Kabbout then said ‘Fuck her’. El-Sayed said, ‘I’m going to’. El-Sayed said to her, ‘Stand up’. She stood, Kabbout left the room leaving the door half open. He took off her pants and pushed the door so it was ajar. He then took off her underwear. She said, ‘I don’t want to have sex’. He said, ‘It’s okay, it’s fine’. She said, ‘I don’t really want to’
…
The Crown alleges that the second person to come in was Rami Katlan, and he was brought in, or came in with Kabbout, and she sat up and said “I want to stop”. Kabbout said ‘Not yet’. Kabbout and Rami Katlan were talking and laughing with each other… She started then to perform fellatio on Rami Katlan. Kabbout watched for a bit and then returned to the living room, and he closed the door…
…[B]y the time [Rami] returned to the living room Kabbout was already in her bedroom by then.
…She said that [sic] sat up on the edge of the bed, she looked at Kabbout and said, ‘Can we stop? Can we stop? I want to stop’. She was crying and Kabbout said to [Mr Ali], ‘Come in here’. He walked into the bedroom. Kabbout said, ‘Can I record you sucking his dick?’ She said no. Kabbout said, ‘Okay, fine, just suck his dick’. Mohammed Ali told Kabbout to leave the room, which he did. Ali pulled his pants down a bit and took out his penis. He grabbed the complainant’s head, pulling it towards him and she performed fellatio on him.”
“Q. And it’s the case, isn’t it, that Adam introduced you to the first male?
A. No.
Q. And when he did, I suggest, you and Omar had a discussion about having sex.
A. No.
Q. And if there was a recording of that conversation, what do you think that it would convey?
A. Not what you’re saying.
Q. What would it convey?
A. Him telling me to give him pleasure.
Q. And you did?
A. Yes, I did.”
The applicant submitted that “[i]t was indispensable to guilt” for the Crown to prove that the applicant gave the directions foreshadowed in the opening address. As the Crown did not do so, the applicant said that it was not open to the jury to find beyond a reasonable doubt that the applicant had acted as part of a joint criminal enterprise.
Further, on the basis that the key submission was that the complainant did not come up to proof on the directorial acts foreshadowed in the Crown opening address, the applicant submitted that this was not a case in which the jury possessed an advantage over this Court, referring to Dansie at [17].
“Q. And at no point has [CM] reported to you that the person Adam said anything during either of those exchanges with [Rami and Mr Ali]?
A. Do you mean if Adam had said anything between [Rami and Mr Ali]?
Q. Yes
A. No.
Q. And there’s no description there of the person Adam being in the room at--
A No.
Q. --any time? That’s [Rami and Mr Ali].
A. No.
Q. And then you’ve recorded that the complainant used this expression, that after [Rami] had walked back into the living room, she ‘began crying at what had occurred’?
A. Yes.
Q. And then it’s recorded, ‘Adam walked into the bedroom’?
A. Yes.
Q. And the complainant told Adam that she ‘wanted them all to leave’?
A. Yes.
Q. And the complainant does not assert at this point to you on 20 April that Adam said anything to her at all about words to the effect of ‘it’s your loss’?
A. No.
[…]
Q. And it’s recorded there that the complainant reported to you, ‘and then I said that I needed to take a shower, so I went to the bathroom, and I was there for maybe like 15 minutes.’
A. Yes.
Q. And then the complainant describes what I might refer to as the first male coming into her room at page 4 at about point three, it’s reported there, ‘he went back out and then he came back into my room with one person.’
A. Yes.
Q. So, ‘he went back out’ is a reference to Adam going back out, and coming back--
A. Correct.
Q. And whilst the complainant was explaining this to you, she doesn’t report the person, Adam, saying anything to her or [Mr El-Sayed]?
A. No.
[…]
Q. And if I could just ask you to look at the bottom of page 5, the complainant says, ‘and then after he, the one person, he enter my room’, and you’ll see that’s a reference to [Mr El-Sayed].
A. Yes.
Q. And then you say, ‘so he brought – he went into the room with you and brought in another one of the males that were out here, and she says, ‘yeah’.
A. Yes.
Q. But the complainant had actually said, ‘and he, the one person, he enter my room’, and it was you that suggested that it was Adam that brought him in.
A. I – I would say it’s not – not so much a suggestion, but rather a – a point for clarification. So yeah, I just wanted to clarify with her that point.
Q. And so in endeavouring to clarify that point, over the page at page 6, the complainant doesn’t attribute to the person, Adam, anything said to either her or to [Mr El-Sayed]?
A. No.
Q. And the same is the case in respect of [Rami and Mr Ali], and you’ll see that at about point 5 on the page where the complainant says: ‘And the same kind of thing, and then he did the same thing as well, and then the last one’…
[…]
Q. And that’s the complainant in her unit explaining to you that the same thing happened with [Rami and Mr Ali]?
A. Yes.
Q. And again, there’s nothing recorded by the complainant as to anything said by Adam?
A. No.
[…]
Q. … And you’ve asked if any of the men used the bathroom, and she said yes, and she conveyed that, ‘People would just come in and out. I didn’t take notice who did’?
A. Yes.
Q. And in respect of anything that the complainant told you on this day, did she comment that what she’d said about or not said about the person, Adam, was because she was embarrassed?
A. No, I don’t recall any comments like that.
Q. And the complainant’s testimony in this court… is when asked what a recording might reveal of conversation between herself and [Mr El-Sayed] at such time as he came into her bedroom, the complainant testified that any such recording would indicate [Mr El-Sayed] referring to the possibility of her giving him pleasure. That’s not something the complainant had told you?
A. No, she didn’t recall any specific comments.”
The applicant submitted that the account the complainant provided to SC Sa Rosa, including as recorded in the key exchanges set out above, was not consistent with the applicant’s guilt of the offences with which he was charged. That was so because that account demonstrated no suggestion of knowledge on the part of the applicant that a crime was or was about to be committed by any of the co-accused, nor that he intentionally assisted or encouraged any of the co-accused in a joint criminal enterprise to commit that crime. Rather, the evidence of SC Sa Rosa was of an account given by the complainant which was consistent with the applicant’s own evidence. That is, the applicant remained in the living room until after each of the co-accused had been inside, at which point he found the complainant to be upset and told him to leave. He was confused at this because he had assumed she had been consenting given what they had communicated up until that point.
Further, the applicant submitted that the jury should have had a doubt about the critical details given in the complainant’s evidence which were absent from the accounts given by the complainant to SC Sa Rosa. At trial, particular attention was directed to the fact that the complainant told SC Sa Rosa that “people would just come…I didn’t take notice who did”, as it was foreshadowed to the jury that the trial judge would give a direction as to a special need for caution before accepting the complainant’s evidence attributing things said and done to the applicant. That direction was given in the following form:
“There are a number of matters that have been specifically raised in this case that require your consideration. It is not an issue that [CM] had not met Mr Kabbout in person before; there was evidence that she received at times a selfie from him; it is obviously harder to identify strangers than it is to identify people who are well known to us; what opportunity did she have to commit to memory his features that night? The evidence is they met on the street just before midnight in the dark; they conversed for a short time before, on the Crown case; she took a shower for 15 minutes. In what light was the accused to be observed at arrival at the unit, and at various times during the evening? She said there was no light bulb in the ceiling and used a mirror with light, a ‘lamp kind of thing’ in her bedroom. Was there anything about the person observed which would have impressed itself upon her? In other words, was there anything distinctive about the person? She did not describe anything distinctive about Mr Kabbout. And was she under any stress or pressure at the time?
You must give consideration to each of these matters as any one of these circumstances may possibly lead to error.
What I have done is tell you about the need for special caution in coming to your decision about whether you accept the identification evidence. There is a need for special caution because of the potential unreliability of the evidence and I have told you the reasons why that may be so. I want you to clearly understand this so that you can make your decision about the reliability of the evidence by taking into account all the matters that are relevant to that task.”
CM Smthn happened to me Friday night
Ms Foot What?
CM I got raped
Ms Foot By who?
CM I was gonna see this guy right, we’ve been talking for a while and he came over but I took a shower
CM and when I came out his friends were in my house
CM it’s just been draining me lately
CM and I didn’t know who to tell or what to do
Ms Foot wait so he came over?
Ms Foot Then you took a shower?
Ms Foot And when you were there all his friends came in?
Ms Foot What the duck
Ms Foot How many of them?
CM 4 including him
Ms Foot and it was all of them?
CM except him
Ms Foot What the fuck
Ms Foot then what happened after? Like they just left?
CM only two actually fucked me
CM but when he came into the room he saw me crying and I told them to leave
CM and they were very rude
Ms Foot so he was just outside the room?
Ms Foot and they were all in ur room?
Ms Foot then he just came in like nothing happened?
Ms Foot this is so fucked
Ms Foot You should literally report him to the police
CM only two during the whole thing
CM He’d come in and look for a bit
The applicant submitted that this exchange was significant as there was no complaint made of the applicant directing things, or his observing the complainant crying earlier and then, or at all, encouraging others. In her evidence, Ms Foot testified that the complainant did not tell her at any later time that some of the things she had said in the text messages were not true.
The applicant also directed attention to Exhibit O, which was the agreed facts about things the complainant’s youngest sister had heard from the complainant and subsequently conveyed to police on 21 April 2022 in an electronically recorded interview. Exhibit O relevantly included the following exchanges between the complainant’s sister and police:
“Q3: So, uh, tell me everything from the beginning to end about, um, what [CM] told you about what happened to her on Friday.
A3: Yeah. Uh, well she said to us that, um, something happened on Friday. She said that, um, on Friday night that, um, she invited someone over just to like chat and get to know them, ‘cause that was the first time that they saw each other. And that they’d been talking online. Am um, she’s just gotten home from, uh, work, and she wanted to take a shower, so she told him to, um, wait there. And when she got out of the shower, um, she saw that him and his friends, were in the living room and she got, um, frightened, um, and then she told the guy that she didn’t want them there and what are they doing there? And she said he said it was all right, and then, um, it escalated to one of them forced her to do oral sex. Then, then they start to have, they raped her, and uh, and one at a time, a guy went in when they were done. And they did the same thing. And um, the other guy came in and they did a different position and my sister was crying ..... and she said to the original guy that she didn’t want this anymore. And she told them to leave and then they guys started, they started laughing. Um, and they were just speaking their own language while it was happening, and the guy just said to her before they left, um, it was your loss. And um, they, they started being rowdy once they left. And um, my sister felt that, she was just crying, and um, she was, um, feeling guilty.
…
Q13: So, uh, tell me more about when [CM] started telling you about, uh, Friday night she invited someone over to chat. Uh, tell me more about what she said there.
A13: Uh, so she invited him over ‘cause it was the first time that she saw him ‘cause they met on a dating app. And they’ve been chatting for over, uh, since last year, the middle of last year, and that they just wanted to like talk and, um, like she just felt like um sweaty so she went to the shower and he invited his friends over.
…
Q22: O.K. Can you tell me more about what [CM] said about when this person came into the house?
A22: Uh, it’s just like, uh, she like she heard noises coming in her room and uh, she went to check it, and there was like he invited like four people there, and um, she didn’t know anybody. And uh, her, uh, she told the original guy that she didn’t want them here and why are they here? And what are they doing in her house? And he was like, um, it doesn’t matter, but then, um, you don’t need to worry. Then she kept saying that they don’t, she doesn’t want them here.
Q23: O.K. So tell me more about when [CM] told you she got
frightened. Didn’t want them there and then it escalated from there.
A23: Um, so um, the other guy, uh, he, he brought one of his friends into her bedroom, he, um, forced her to, um give him oral and um, the original guy was just standing there and laughing and cheering him on and uh, and then he pushed her onto the bed and uh, raped her. And then, um, when she, when he was done with her, the, the other guy kept going back in, and seeing if they were done, like, he’s laughing and speaking their other language. And brought another guy in and did the same thing, and uh, they were just laughing and like, um, like just like making lots of noise and, and the third guy came in, and did the same thing, and uh, uh, and uh, they finished, and uh, when the other guy came in, the original guy, uh, uh, uh, she just told him that she can’t do this anymore, and she, she just wanted to, them to go.
Q24: And what happened next?
A24: Um, he just, he was like, your loss, and started laughing, and told his friends to go, and they all left, and made lots of sound once they were leaving.”
The applicant submitted that he might be understood as “the original guy” in this evidence. That being the case, he submitted there was no evidence of direction or alike attributed to him in this interview.
In conclusion, the applicant submitted that the complainant’s complaint evidence contributed to, rather than dispelled, the reasonable doubt which was said to arise from her testimony, particularly, because it did not record any complaint of him giving directions to the other men. Evidence of his “mere coming and going at unidentified times” was said not to suffice to constitute offending “in company” and in any event was not the case he was required to meet.
The applicant made further submissions in relation to other matters he said should have compelled towards an acquittal.
First, on the applicant’s case he arrived at the unit first, followed by Mr El-Sayed, and then the other men. This was corroborated by the CCTV evidence and was also consistent with the evidence given by Yazan. The applicant submitted that the complainant’s evidence that all men arrived at once and in the circumstances of surprise should not have been accepted.
Second, that it was improbable that the complainant would have taken a 10-15 minute shower. The complainant gave evidence that she did so to make sure she felt clean in preparation for sex. That evidence was originally given in the context of the complainant having testified that her and the applicant were kissing prior to the shower, which she later conceded possibly did not occur. The applicant submitted that in circumstances where the complainant accepted the possibility that there was no kissing between her and the applicant, there is a doubt as to whether she ever took a shower of that duration in order to “feel clean” ahead of sexual intercourse with him. The denouement of this submission was that a doubt about the shower raises a doubt about the trespass of the other men into her unit, and in that regard has some overlap with the submission set out at [69] above.
Third, the applicant drew attention to evidence of internet searches the complainant had made for group sex related pornography proximate to the date of the alleged offending (Exhibit 1). In cross-examination the complainant accepted that she searched for that content because the material that was revealed by the searches was of sexual interest to her. She also gave evidence that she had conducted searches after the incident “to see if the women in the videos were crying the way I was crying”. The trial judge gave a direction to the jury that evidence of the searches was before them for the very limited purpose of enabling the jurors “to assess [CM]’s evidence in a realistic context”. The complainant maintained that notwithstanding her sexual interest in the group sex pornography, she had never told anyone about that interest including the applicant. The applicant, however, gave evidence that the complainant had disclosed her interest in group sex to him, which was fundamental to his case as to why he ever raised the topic with her and his innocent intention in inviting his friends to her premises.
Fourth, on 20 April 2022, the complainant was examined by Dr Rachael Thomas. The complainant gave Dr Thomas a “history”, which Dr Thomas made notes of. Those notes recorded the complainant having told Dr Thomas that she had been sexually assaulted by three men over a period of three hours. That was inconsistent with the CCTV evidence which indicated the applicant arrived at around midnight, Mr El-Sayed arrived shortly after 12:13am, the other men arrived shortly after 12:18am, and the men collectively left shortly before 12:35am. The applicant submitted that the complainant therefore gave a false and exaggerated history to Dr Thomas which was materially relevant to painting a false case against the applicant.
Fifth, that the complainant was prepared to lie to police and in her evidence at trial. She had initially said in her oral evidence that the nature of the messages she would send to the applicant were “quick messages” along the lines of, “‘[h]ey, are you free? Free to meet up? Are you doing anything?’ Just stuff like that”. She said they initially had a conversation about what they did for work but it did not get more personal than that. She also said that she never sent any pictures. In cross-examination the applicant’s counsel presented to the complainant statements she had made to police on 22 April 2022, 28 April 2022, and 5 May 2022. The complainant accepted that in the 5 May statement she had conveyed to police that communications between her and the applicant had been sexual in nature including her having sent sexual photographs, and she had not told this to police earlier. She also accepted that she was asked to give that statement after police had conducted some searches of her internet history. Later in cross-examination, it was put to the complainant that she had sent the applicant an image of her with a dildo. She denied having done so on that basis that she did not have one. When presented with evidence to the contrary in cross examination, she accepted that she had indeed sent an image with a dildo to the applicant.
Sixth, in a point that was emphasised in oral submissions, the jury acquitted the applicant of the counts with which he was charged in relation to Rami (counts 5 and 7). Nevertheless, Rami was still convicted of an alternative count of sexual assault simpliciter. The applicant submitted that it was hard to reconcile Rami’s verdict with Mr Ali’s verdict, as similar evidence was given for each. It was suggested that the doubt the jury entertained about Rami should inform the probative value of the complainant in respect of each of the counts subject of this appeal. On that same point, there was some suggestion that in the remarks on sentence the trial judge found that the applicant’s acquittal in respect of counts 5 and 7 raised a doubt as to the existence of an overarching joint criminal enterprise including one entered into before arriving at the complainant’s premises, and that finding should have some influence upon this Court.
The respondent submitted that the success of the Crown case did not depend on proof of the “directorial acts”. Proof of such acts was neither necessary to prove the existence of a joint criminal enterprise, nor to prove that the applicant was in company with each co-accused.
At no stage in its opening address did the Crown identify any “directorial acts” as essential particulars of its case against the applicant. The respondent pointed out that the applicant’s counsel at trial sought a number of redirections but did not seek a direction that the jury had to find, as an indispensable link in the chain of reasoning to guilt, that the “directorial acts” be proved beyond reasonable doubt.
The respondent submitted that the Crown prosecutor at trial simply indicated the Crown case was one of joint criminal enterprise and explained the concept of being “in company” at a level of generality. In the closing address, the Crown prosecutor correctly submitted that in order to establish the liability of the applicant on the basis of joint criminal enterprise, the jury had to be satisfied that there existed “an understanding or arrangement amounting to an agreement” between the applicant and the relevant co-accused, and the participation in it by the applicant.
The Crown prosecutor at trial outlined the evidence relied upon against the applicant including, his arrival in the car with the co-accused; not telling the complainant that the others were outside; his knowledge, upon arrival, that the complainant had not agreed to group sex; his bringing the co-accused into the unit; his enlisting of Rami to take the photographs of the Snapchat conversation; and the applicant’s physical presence in the bedroom during the events. These were the circumstances relied upon to establish the Crown case against the applicant at trial. None of the circumstances were an indispensable link in the chain of reasoning to guilt.
The respondent submitted that it is apparent that the basis on which the Crown case was articulated with respect to the applicant’s involvement in the joint criminal enterprise, and proof of his being “in company”, was put on the basis that the jury could draw the relevant inferences from a series of circumstances, including but not limited to, any direction the applicant gave.
The respondent submitted that the fact that the complainant did not give evidence of all of the “directorial acts” which had been foreshadowed in the opening address, did not represent a departure from the manner in which the Crown case had been put in the opening.
The respondent submitted that the reasonableness of the verdicts must be assessed on the basis that the jury accepted the complainant’s evidence as credible and reliable. On the assumption, which this Court must make, that the complainant’s version was accepted, the respondent submitted that the evidence established the applicant’s guilt beyond reasonable doubt (that is, including of joint criminal enterprise and the element of “in company”).
At no stage in its opening address did the Crown identify any “directorial acts” as essential particulars of its case against the applicant upon which it was putting itself to proof. Moreover, it was not how the Crown case was left to the jury. In the trial judge’s summing up, extracted at [52] above, directorial acts were amongst a number of other matters which the jury were invited to take into account. No direction was sought by the applicant as to indispensability. Proof of directorial acts was not necessary to prove the existence of a joint criminal enterprise or to prove the applicant was in company with each of the accused.
The Crown had to prove the elements consistently with how the case was left to the jury. The trial judge’s directions were not impugned in this appeal. Consistently with her Honour’s summing up, in its closing address, the Crown put its case as to the element of joint criminal enterprise on the basis that the jury could draw the relevant inferences from all the circumstances and:
“…infer the existence of an implicit agreement and intentional encouragement or assistance on the part of Mr Kabbout to each of the acts of Omar El-Sayed, Rami Katlan, and Mohammed Ali.”
In relation to the in company element, the Crown put its case on the basis that the coercive effect of the applicant and the relevant co-accused for each of the counts operated either to embolden or reassure the relevant co-accused or to intimidate the complainant into submission. The Crown made the point that to a large extent there was in that regard an overlap with the joint criminal enterprise element.
Contrary to the submission of the applicant, on the case left to the jury by the Crown, the jury had significant advantages over this Court in assessing the evidence. That is particularly the case where the applicant sought to impugn the weight the jury should have afforded the complainant’s evidence in this appeal. Particular matters in which the jury would have had an advantage over this court are identified throughout the paragraphs that follow.
Taken together, and on the assumption, consistently with Pell at [39], that the complainant’s evidence was assessed by the jury to be credible and reliable, the evidence in support of the Crown’s case was reasonably strong and could compel of a finding of guilt beyond reasonable doubt. That was so because:
The applicant was responsible for the offences taking place at all in that he was the only person in contact with the complainant whilst in the car, he invited the co-accused into her unit, and he let them into the unit without the complainant’s knowledge.
While exchanging messages with the complainant in the car, he knew that she was not interested in group sex and proceeded nonetheless to tell the co-accused that he would ask her again and let them know if she changed her mind.
Having watched the video filmed by Rami of the moments before the complainant performed fellatio upon Mr Ali, I was able to hear the complainant saying “no, I don’t want to” and consider it was open to the jury to reach the same view. That evidence is particularly significant as the unit was small in size and the video was filmed from outside of the bedroom with the door largely open. In the circumstances depicted in the video, it seems improbable that a person in the living room such as the applicant could be oblivious to what was occurring in the bedroom, whether or not they were standing around the bedroom door (per Yazan’s evidence) or sitting on the couch (per the applicant’s evidence).
Again, taking into account the small size of the unit, the fact of the applicant’s presence in the unit is particularly significant in circumstances where the door to the bedroom was left open. That is so because the presence of the applicant would have been more apparent to those inside of the bedroom for the purposes of emboldening the relevant co-accused or intimidating the complainant.
The complainant told the applicant that she wanted the men to leave, but he nonetheless instructed her to suck Mr El-Sayed’s penis and remained present until after she had started doing so. As an aside, the exchange in the complainant’s cross-examination extracted at [57] above was not necessarily inconsistent with the applicant having directed the complainant to suck Mr El-Sayed’s penis. It may also be reasonably interpreted as evidence of an additional, paraphrased exchange the complainant had with Mr El-Sayed, or as her testifying that the applicant, not Mr El-Sayed, had told her to “give [Mr El-Sayed] pleasure”, which would be consistent with the applicant having directed her to suck Mr El-Sayed’s penis. These possibilities indicate that the transcript may have obscured the true meaning of what the complainant intended to convey, and in that regard the jury possessed the advantage of having heard the evidence firsthand.
The applicant returned to the room after Mr El-Sayed left the ensuite and the complainant said she wanted the men to leave, to which he responded, “not yet”.
The applicant would come into the bedroom, or at least up to the bedroom door, and watch during each of the sexual assaults.
The complainant was crying when the applicant entered the bedroom with Mr Ali such that he must have known she was not consenting.
The Crown also submitted that the lies the applicant told in his interview with police left it open to the jury to reason on the basis of consciousness of guilt and to diminish the applicant’s credibility. I do not regard that point as having significant force as the circumstances of his arrest may well have left him in a state of shock which caused him to give the answers he gave in the manner in which he gave them. Notwithstanding, the jury may have had some advantage in its assessment of the evidence in that regard which led it to reach a different view: The King v ZT at [10].
“The defence case is that [CM] was not telling the truth, and that there were differences and inconsistencies in what she told people had happened.
Experience shows that people may not remember all the details of an event, including a sexual offence, in the same way each time, and that trauma may affect people differently and may affect how they recall events. Sometimes there are differences in an account of a sexual offence, and both truthful and untruthful accounts of an event, including a sexual offence, may contain differences. It is your job, and entirely a matter for you, members of the jury, as judges of the facts, to decide whether or not any differences in [CM’s] account are important in assessing her truthfulness and reliability.
You should also bear in mind that trauma may also affect how people give evidence. Some people may show obvious signs of emotion or distress when giving evidence in court about an alleged offence, others may not, and the presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence.”
In relation to the question of the sequence of arrivals of the other men at the unit, the complainant’s account was not inconsistent with the CCTV evidence. While on the basis of the CCTV evidence it seems that Mr El-Sayed arrived prior to the other men, that could have occurred while the complainant was in the shower. While the applicant and Yazan both gave evidence that Mr El-Sayed was already engaging in intercourse with the complainant by the time the other men arrived, that seemed less probable in circumstances where the others were only around five minutes behind Mr El-Sayed. While Yazan’s evidence corroborated the applicant’s account, it was open to the jury to place limited weight upon that corroboration given Yazan’s relationships with the applicant and co-accused, and to instead prefer the competing evidence of the complainant. In that regard, the jury had the substantial advantage of seeing and hearing firsthand the evidence of the witnesses to aid in its reasoning.
In relation to the shower, it is not at all improbable that the complainant would have taken a 10-15 minute shower. She had just returned to her unit after being out that evening. Whether or not she engaged in kissing with the applicant, it is clear that conduct of a sexual nature was anticipated from the subject matter of the Snapchat messages between them. It was open to the jury to find that she would have taken a shower of that duration in those circumstances.
The complainant’s search history, in the narrow circumstances to which it was before the jury to assess her evidence “in a realistic context”, was a matter with which the jury possessed substantial advantages including having observed the complainant give evidence. It was certainly open to the jury to accept the evidence of the complainant notwithstanding that search history.
The inconsistencies in the evidence given by the complainant at trial and to police in relation to the fact of her having sent messages and images of a sexual nature to the applicant was a matter for the jury in assessing her credibility in circumstances where it was addressed in the parties’ submissions, where it was plausible that she was ashamed or embarrassed about having done so, and where the jury had the advantage of assessing her evidence as a whole including her demeanour. Moreover, there was no evidence that the complainant had sought to actively hide matters from police. Indeed, she handed her phone over to police and consented to its analysis.
Finally, in relation to the applicant’s acquittal of counts 5 and 7, while the complainant’s evidence was similar for Rami and Mr Ali, there were some differences. For example, the complainant gave evidence that she was crying when Mr Ali entered the room with the applicant. The complainant also gave evidence that she thought the applicant left the room when Rami entered, whereas her evidence in relation to Mr Ali was that he entered the room with the applicant and left “[a]t some point during that”, seemingly referring to her giving Mr Ali oral sex. The jury may well have given Rami every benefit of the doubt in relation to these differences. There was evidence from Yazan and from the applicant that Rami had indicated he had had trouble getting an erection and the jury may have been prepared to give him the benefit of the doubt in relation to the principal (in company) and alternative (not in company) penile-vaginal intercourse charges, of which Rami was acquitted. That would have had a correlative effect on the equivalent in-company charge against the applicant, of which he was acquitted. As to the fact that the applicant was also acquitted of the oral intercourse in-company charge relating to Rami, whilst Rami was found guilty of the not-in-company version of that charge, the applicant’s counsel accepted in argument that the jury might not have been persuaded of the “in company” element. That could be so given the complainant’s evidence of the applicant’s movements when Rami entered the bedroom. Suffice it to say, however, that it is not possible to say which path of reasoning the jury may have taken to reach its verdict, such verdict being incontrovertible: note Abdallah v R [2019] NSWCCA 294 at [13]-[34]. That being the case, the jury’s acquittal on counts 5 and 7 does not compel of a conclusion that the jury had doubts about the complainant’s credibility or the probative value of her evidence.
Finally, for the avoidance of doubt, it is not appropriate for this Court to advert to the findings of the sentencing judge, including, here, in relation to the sentencing judge’s reasoning as to the acquittal on counts 5 and 7. This Court must decide an appeal of this nature by making its “own independent assessment of the evidence”: M v The Queen at 492.
For the foregoing reasons, the Crown case was reasonably strong and it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Having conducted an independent assessment of the evidence, both as to its sufficiency and its quality, I am not of the view that the verdicts are unreasonable.
The following orders should be made:
Extend the time for the filing of the applicant’s notice of appeal to 20 January 2026.
Leave to appeal granted.
Appeal dismissed.
SIRTES J: I have had the considerable advantage of reading in draft the reasons of Yehia J. Her Honour has comprehensively described the evidence at trial and considered the issues raised on this application. I have conducted my own independent assessment of that evidence. Having done so, I do not have a doubt about the applicant’s guilt. The jury’s verdicts were well open to them. I agree with the orders proposed by Yehia J for the reasons provided by her Honour.
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Kabbout
R
[2026] NSWCCA 55
(2020) 267 CLR 654
(2022) 274 CLR 651
(2014) 252 CLR 601
(1994) 181 CLR 487
(1996) 190 CLR 348
(2020) 268 CLR 123
(2025) 281 CLR 137
(2007) 228 CLR 618