Abdel (a pseudonym) v The King - [2024] VSCA 36

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0198

MOHAMED ABDEL (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE, WHELAN and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2024
DATE OF JUDGMENT:	18 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 36
JUDGMENT APPEALED FROM:	[2022] VCC 1113 (Judge Tiwana)

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CRIMINAL LAW – Appeal – Conviction – Three charges of sexual offending against one complainant – Jury convicted on a charge of rape, but acquitted of one charge of sexual assault and could not agree on another charge of sexual assault – Whether verdicts inconsistent – not reasonably arguable that verdicts inconsistent – Application for extension of time – Application to extend time refused.

CRIMINAL LAW – Appeal – Conviction – Whether jury’s failure to agree on a verdict on one charge relevant to the doctrine of inconsistent verdicts – Pillay v The Queen (2014) 43 VR 327 followed.

MacKenzie v The Queen (1996) 190 CLR 348, MFA v The Queen (2002) 213 CLR 606, Woods v The Queen [2019] VSCA 259, applied.

Pillay v The Queen (2014) 43 VR 327, Crofts v The Queen [2018] VSCA 197, followed.

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Counsel
Applicant:		Ms M Brown
Respondent:		Dr N Rogers SC
Solicitors
Applicant:	Slink & Keating, Barristers & Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BOYCE JA
WHELAN JA
T FORREST JA:

Introduction

On 11 February 2022, after an eight day trial in the County Court, the applicant was found guilty, by majority verdict, of rape (charge 3), and not guilty of sexual assault (charge 2). The jury were unable to reach a verdict in respect of a charge of sexual assault (charge 1). On 21 July 2022, following a plea hearing, the applicant was sentenced to 4 years and 2 months’ imprisonment with a non-parole period of 2 years and 6 months.
The applicant seeks leave to appeal against his conviction. The applicant’s proposed ground of appeal is in the following terms:
The conviction is unreasonable or cannot be supported having regard to the evidence as the verdict on charges 1 and 2 is logically inconsistent with the verdict on charge 3.
The application for leave is out of time by approximately four months; thus the applicant must apply for an extension of time within which to file the application for leave. The application to extend time is opposed by the respondent. The evidence relied upon in support of the application to extend time is thin. In a supporting affidavit, the applicant’s solicitor states that whereas the applicant was sentenced on 21 July 2022:
Funding could not be obtained until merit of appeal against conviction and sentence was received from Counsel…
There was a delay in receiving advice from Counsel and therefore delays in obtaining funding.
The merit of the applicant’s proposed ground of appeal is likely to be relevant to whether an extension of time should be allowed. It was on this basis that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdel (a pseudonym) v The King

Details

AGLC: Abdel (a pseudonym) v The King [2024] VSCA 36
Case: [2024] VSCA 36
Decision Date: 18 March 2024

CaseChat Overview and Summary

In this matter, the appellant, Abdel, brought an appeal against his conviction for a single charge of rape and other charges related to sexual offences against a single complainant. The jury convicted him of rape but acquitted him on one charge of sexual assault and failed to reach a verdict on another charge of sexual assault. The appeal centred on whether the verdicts were inconsistent and if the jury's failure to agree on a verdict on one charge was relevant to the doctrine of inconsistent verdicts. The Supreme Court of Victoria heard the case, where the appellant sought an extension of time for filing the appeal and to challenge the conviction's validity.

The legal issues before the court were whether the verdicts were inconsistent and whether the jury's inability to agree on one charge of sexual assault was relevant to the doctrine of inconsistent verdicts. The court considered whether the verdicts were inconsistent and if the jury's failure to agree on one charge was relevant to the doctrine of inconsistent verdicts. The court examined relevant case law, including MacKenzie v The Queen, MFA v The Queen, Woods v The Queen, Pillay v The Queen, and Crofts v The Queen, to determine the outcome.

The court found that the verdicts were not inconsistent and that it was not reasonably arguable that the verdicts were inconsistent. The court held that the jury's failure to agree on one charge of sexual assault was not relevant to the doctrine of inconsistent verdicts. The court followed the reasoning in Pillay v The Queen and Crofts v The Queen and rejected the appellant's argument that the verdicts were inconsistent. The court also dismissed the application for an extension of time and the appeal.

The court dismissed the appeal and refused the application for an extension of time. The conviction for the charge of rape remained in place, and the appellant's challenge to the conviction's validity was unsuccessful. The court held that the verdicts were not inconsistent and that the jury's failure to agree on one charge of sexual assault was not relevant to the doctrine of inconsistent verdicts. The appellant's application for an extension of time was also dismissed.

Orders