Abdirizak Jama Hashi v The Queen
[2016] VSCA 288
•25 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0017
| ABDIRIZAK JAMA HASHI | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY and FERGUSON JJA, and BEALE AJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 17 November 2016 | |
| DATE OF REASONS: | 25 November 2016 | |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 288 | |
| JUDGMENT APPEALED FROM: | DPP v Hashi (Unreported, County Court of Victoria, Judge Smallwood, 28 August to 3 September 2016 (Convictions)) | |
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CRIMINAL LAW – Application for leave to appeal against conviction – Rape – Primary issue absence of consent – Severance – Whether coincidence evidence correctly admitted – Application dismissed – Evidence Act 2008, ss 98, 101.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Bayles | James Dowsley & Associates |
| For the Crown | Mr B Kissane QC | Mr John Cain, Solicitor for Public Prosecutions |
ASHLEY JA:
I respectfully agree with the reasons of Beale AJA, which cogently explain why the Court refused the prisoner’s application for leave to appeal against conviction.
FERGUSON JA:
I agree with Beale AJA for the reasons that he gives for refusing the application for leave to appeal against conviction.
BEALE AJA:
Introduction
On 18 November 2016, at the conclusion of the hearing, we refused this application for leave to appeal against conviction and said we would publish our reasons later. We do so now.
In short, the dismissal of the application turned on our conclusion that the trial judge was correct in ruling that certain coincidence evidence was admissible in the applicant’s trial on two charges of rape. The coincidence evidence related to the unusual, if not remarkable, means by which the applicant was alleged to have threatened the rape complainant and, 30 to 45 minutes later, a petrol station cashier — namely, by using a cigarette lighter and an aerosol can of deodorant as a makeshift flame thrower.
Overview
The applicant, who is now 31 years of age, was charged on Indictment No 13863200A (the first indictment) with theft of a motor vehicle (Charge 1), reckless conduct endangering a person (Charge 2), digital/vaginal rape (Charge 3), penile/vaginal rape (Charge 4) and attempted armed robbery (Charge 5).
On 26 August 2015, following a pre-trial ruling admitting coincidence
evidence and rejecting an application for severance, the applicant pleaded guilty to Charge 1 and Charge 5 on the first indictment.
On the same day, he also pleaded guilty to a further three charges on Indictment No 13863200B (the second indictment), namely, two charges of attempted robbery (Charges 1 & 2) and one charge of theft of a motor vehicle (Charge 3).
On 28 August 2015, in relation to the contested charges on the first indictment, and two alternative charges of sexual penetration of a child under the age of 16, the applicant was arraigned before a jury panel. He pleaded not guilty. A jury was empanelled.
At the close of the prosecution case on 2 September 2015, the trial judge directed an acquittal on the charge of reckless conduct endangering a person (Charge 2).
On 3 September 2015, the jury returned verdicts of guilty on both rape charges. No verdict was taken on the alternative charges of sexual penetration of a child.
The applicant was sentenced on 16 December 2015 as follows:
| First Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Theft [s 74 of the Crimes Act 1958] | 10 years’ imprisonment | 1 month imprisonment | |
| 3 | Rape [s 38 of the Crimes Act 1958] | 25 years’ imprisonment | 5 years’ imprisonment | 6 months |
| 4 | Rape [s 38 of the Crimes Act 1958] | 25 years’ imprisonment | 6 years’ imprisonment | Base |
| 5 | Attempted armed robbery [ss 75A & 321M of the Crimes Act 1958] | 20 years’ imprisonment | 3 years’ imprisonment | 1 year |
| Second Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Attempted robbery [ss 75 & 321M of the Crimes Act 1958] | 10 years’ imprisonment | 9 months’ imprisonment | 3 months |
| 2 | Attempted robbery [ss 75 & 321M of the Crimes Act 1958] | 10 years’ imprisonment | 9 months’ imprisonment | 3 months |
| 3 | Theft [s 74 of the Crimes Act 1958] | 10 years’ imprisonment | 7 days imprisonment | |
| Total Effective Sentence: | 8 years’ imprisonment | |||
| Non-Parole Period: | 5 years’ imprisonment | |||
| Pre-sentence Detention Declared: | 392 days | |||
| 6AAA Statement: | N/A | |||
| Other orders: Sex offender registration for 15 years pursuant to the Sex Offenders Registration Act 2004. | ||||
Grounds of Appeal
The applicant sought leave to appeal his conviction on the two rape charges on the following grounds:
(a) The Learned Trial Judge erred in admitting evidence relating to Charge 5 [attempted armed robbery] as coincidence evidence supportive of Charges 3 and 4.
(b) The Learned Trial Judge’s refusal to sever Charge 5 from Charges 3 and 4 resulted in a substantial miscarriage of justice.
The prosecution case
The prosecution case was that at approximately 10.47am on Thursday 20 November 2014, the applicant attended the Housing Commission flats in Carlton. He struck up a conversation with a stranger, the 15 year old complainant, who was living at the flats with her aunt and uncle. The applicant told the complainant he wanted ‘ice’ and asked the complainant to make a phone call for him to a supplier at the flats. She made the phone call on the applicant’s behalf. The applicant then told the complainant that she needed to come with him to get $250 from his car.
When they got to the car, a Suzuki Vitara four wheel drive[1], the applicant got in the driver’s seat and told the complainant to get in. She refused. The applicant threatened to burn her if she did not comply. She got in the car.
[1]This was the car that was the subject of Charge 1 on the first indictment, which he had stolen earlier that day.
As they both sat in the car, the applicant asked the complainant how old she was. She told him she was 15 and he said he was 20.
The applicant sprayed himself with deodorant and asked if the complainant liked it and if she wanted any. The complainant refused but the applicant sprayed her hair and upper body with the deodorant anyway. The applicant then lit his cigarette lighter and sprayed deodorant over the exposed flame, causing the spray to ignite. The applicant shot flames several times across the complainant, diagonally towards the dashboard (Charge 2 on the first indictment).
The applicant then drove the complainant to a nearby alleyway where he stopped the car. The complainant tried to get out of the car but the applicant punched her and climbed over the centre console of the car and positioned himself on top of her in the front passenger seat. The applicant placed his left hand down the front of the complainant’s shorts and underwear and inserted his left middle finger into her vagina (Charge 3 on the first indictment). The applicant also removed the complainant’s and his own lower clothing, and inserted his penis into her vagina (Charge 4 on the first indictment). The complainant was terrified throughout this ordeal.
At approximately 11.12am, the complainant’s aunt sent a text message to the complainant asking if she was alright. She received no reply. The complainant’s aunt also rang her four times between 11.13am and 11.17am but the complainant did not answer her phone.
The applicant drove the complainant back to the Carlton Housing Commission flats. The complainant sent a text message to her aunt during this time with the words ‘Please help me’. Her aunt replied ‘Where are you?’ but the complainant did not reply. Her aunt went looking for her.
A short time later, the applicant parked outside the flats. The complainant got out of the Suzuki and the applicant drove off. The complainant’s aunt saw her and came to her assistance. The complainant was hysterical and kept repeating ‘he raped me’ and said that the applicant had attempted to burn her with a lighter and a can of deodorant.
At approximately 11.55am that morning, the applicant drove to a Caltex service station in Northcote. The applicant parked the car and entered the store holding a deodorant can in his hand. He was spraying himself with the deodorant. The applicant asked the cashier for a packet of cigarettes, then raised the deodorant can and using the cigarette lighter, sprayed the deodorant over the exposed flame towards the cashier. This caused flames to shoot towards the cashier. The applicant said ‘give me all your fucking money.’ The cashier screamed and another employee of the store came out from the back with a shovel and chased the applicant away from the store. This incident was the subject of Charge 5 of the first indictment — attempted armed robbery — to which the applicant pleaded guilty prior to the empanelment of the jury.
Impugned ruling
The prosecution served tendency and coincidence notices[2] on the defence prior to the trial. Both notices referred to the evidence concerning the incidents involving the complainant and the Caltex cashier, but also to evidence concerning some incidents that had occurred several years before when the applicant had engaged in similar threatening conduct.
[2]We note that, curiously, neither the tendency or the coincidence notices specified that the evidence described in the notices was relevant to the rape charges. In relation to the incident involving the complainant, both notices referred only to the charge of ‘conduct endangering persons’ and identified the fact in issue to which the tendency and coincidence evidence related as ‘whether the accused without lawful excuse recklessly engaged in conduct namely igniting the spray from an aerosol can with a lighter to produce a flame that placed [the complainant] in danger of serious injury’. No objection was taken at trial to the form of the coincidence notice. In this Court, neither the grounds of appeal nor the applicant’s submissions adverted to the form of coincidence notice. Even if this matter had been agitated, the deficiency in the coincidence notice could not be said to have occasioned a substantial miscarriage of justice in circumstances where the applicant was made aware during the pre- trial argument that the Crown also relied on the coincidence evidence to support the prosecution case on the rape charges. The present case is quite different to Andelman v R [2013] VSCA 25 where the accused was unrepresented at his trial and there was no coincidence notice at all. The Court in Andelman found that the failure to serve a coincidence notice, in combination with other defects in the trial, resulted in a substantial miscarriage of justice.
In the course of pre-trial argument, the trial judge indicated that he was not attracted by the evidence regarding the older incidents, nor by the prospect of the jury having to grapple with both tendency and coincidence reasoning. The prosecution did not press either point and so the pre-trial argument eventually focused on the admissibility of the coincidence evidence concerning the incidents involving the complainant and the Caltex cashier.
The trial judge ruled that this evidence was cross admissible as coincidence evidence and rejected the application for severance of the charges concerning the complainant from the charge concerning the Caltex cashier. As mentioned above, on 26 August 2015, following the impugned ruling, the applicant pleaded guilty to Charge 5, abandoning his foreshadowed defence of mistaken identity to that charge.
The course of the trial
In the course of the trial, there was no dispute that the alleged sexual activity had occurred. The primary issue on the rape charges was whether the jury could be satisfied beyond reasonable doubt that the complainant was not consenting to sexual activity. If absence of consent was established, a further issue was whether the applicant was aware that she was not consenting or might not be consenting.
Pursuant to the impugned ruling, the prosecution led evidence from the Caltex cashier about the circumstances of the attempted armed robbery. No questions were asked of this witness in cross examination. CCTV footage of the Caltex incident was also played to the jury.
At the close of the prosecution case, the jury were directed to acquit in relation to Charge 2 (conduct endangering persons).[3]
[3]The trial judge directed a verdict of not guilty on Charge 2 as he took the view that there was no evidence of the element of dangerousness. He observed that the Crown position was that the complainant had been endangered by the fact that, having been sprayed with deodorant, the applicant then projected flames near her but “[there] was no evidence as to whether a naked flame anywhere near her could have set her alight”.
The applicant did not give or call any evidence.
On 3 September 2015, the jury returned verdicts of guilty on both rape charges.
The applicant’s written submissions
In his written submissions in relation to ground one, the applicant submitted that because identity was not in issue, the coincidence evidence was being relied on by the prosecution to rebut ‘the coincidence that [the complainant] would falsely allege that she had been menaced by the applicant with a spray can and lighter in circumstances where, some 30 minutes later, the applicant had engaged in threatening behaviour towards [the cashier] at the Caltex Store, employing a spray can and a lighter’. It was submitted that, because the relevance of the coincidence evidence was limited to this matter, it did not have significant probative value and so was inadmissible under s 98 of the Evidence Act 2008.
The applicant also contended that the evidence was inadmissible under s 101 of the Evidence Act 2008 as its probative value did not substantially outweigh the prejudicial effect that it may have had on the applicant. The evidence, it was submitted, was unfairly prejudicial because of the risk of it being misused by the jury: it was evidence that would have excited antipathy towards the applicant, in particular by portraying him as violent and antisocial.
In his written submissions in relation to ground two, the applicant submitted that the attempted armed robbery charge should have been tried separately to the sexual offence charges because they were qualitatively different and had insufficient factual similarities. The severing of the charges would have ‘quarantined the risk’ of the jury improperly and impermissibly using evidence in relation to the attempted armed robbery in support of the unrelated sexual charges, in particular by engaging in impermissible tendency reasoning. The failure to sever the charges led to the introduction of highly prejudicial evidence against the applicant which had the potential to arouse strong feelings in the jury or to be misused by the jury, in particular to conclude that the applicant was a person of bad character or had a tendency to commit crimes and thereby prevented the applicant from receiving a fair trial in relation to the sexual offence charges.
The respondent, in written submissions on grounds 1 and 2, submitted that the trial judge’s ruling, that the evidence of the attempted armed robbery was admissible as coincidence evidence in relation to the sexual offence charges, was correct. The respondent contended that the evidence of the applicant’s use of the aerosol can and lighter during the armed robbery was highly relevant and had significant probative value in relation to the complainant’s description of the applicant using the aerosol can in the car to intimidate her. The trial judge had considered the prejudicial effect of the evidence and properly concluded that any prejudice could be dealt with by way of direction. The trial judge was correct to find that the probative value of the evidence substantially outweighed any risk of unfair prejudice. The respondent commented that the sexual offence charges were more likely to arouse strong feelings in the jury than the attempted armed robbery incident.
The applicant’s oral submissions
In his oral submissions that the coincidence evidence lacked significant probative value, the applicant focused on two matters: first, some puttage at the trial during the cross examination of the complainant; and secondly, the common nature of the items that the applicant was alleged to have used to threaten the complainant and the Caltex cashier.
As regards the puttage at the trial, the applicant drew our attention to the following questions and answers from the cross examination of the complainant:
In relation to the Lynx deodorant and lighting it, let me suggest this to you. You go to the alleyway. He’s parked in the driver’s side, you’re in the passenger seat. He starts to take his pants off ‑ ‑ ‑ ?‑‑‑No.
And there is a can of Lynx deodorant in his pants?‑‑‑Oh wow, that’s unbelievable.
You say no to that do you?‑‑‑No, I say - of course I say no. That is rubbish.
Just bear with me. You ask him why he has it and he explains to you ‑ ‑ ‑?‑‑‑No, no.
Just bear with me, ‑ ‑ ‑?‑‑‑No, no.
Just wait for the question. He explains to you that he uses it, lights it and tries to get money for ice by using it?‑‑‑No. No.
He then demonstrates what he means in the car, ‑ ‑ ‑?‑‑‑No.
Not by pointing it at you ‑ ‑ ‑?‑‑‑No.
Not by threatening you ‑ ‑ ‑?‑‑‑No.
But by lighting it in the driver’s seat?‑‑‑That is incorrect.
And providing you with a demonstration of how he uses it?‑‑‑That is incorrect.
That is how it is you know about the Lynx and the lighter?‑‑‑No. Everything you had just stated there is incorrect.
The Applicant submitted that the scenario put to the complainant in this passage of cross examination explained why there were such distinctive similarities between the complainant’s account of her encounter with the applicant and that of the Caltex cashier. It was submitted that the similarities derived from the fact that the complainant had actually witnessed the applicant use the deodorant and the lighter as a flame thrower but in the course of an innocent, non-threatening demonstration.
Analysis
As mentioned above, the ultimate issues in the trial on the rape charges were, firstly, whether the prosecution had established that the complainant did not consent to sexual activity, and secondly, whether the prosecution had established that the applicant was aware that the complainant was not or might not be consenting.
Whether or not the applicant had threatened the complainant with a makeshift flame thrower a short time prior to them having sex was obviously relevant to both issues. The applicant did not suggest otherwise.[4] The coincidence evidence went to that fact, which was relevant to the ultimate facts in issue. It also went to the complainant’s credibility, which is how the trial judge left it to the jury, a direction that was unduly favourable to the applicant.
[4] Either at trial or in the current proceedings.
As regards the scenario suggested to the complainant in cross examination, which she flatly rejected, the simple fact is that no evidence was adduced to support it. The applicant gave a no comment record of interview. He did not give evidence or call evidence at his trial. Puttage is not evidence.
As for the second argument advanced in oral submissions — that the coincidence evidence lacked significant probative value because the cigarette lighter and the deodorant aerosol are common items — it is not the nature of the items that is of significance but the use to which they were put, or allegedly put. The applicant did not, and could not, deny that the alleged use was unusual. Indeed the applicant came very close to conceding, unsurprisingly, that the alleged use was striking.
I am satisfied that the coincidence evidence had significant probative value. Though one incident involved alleged rapes and the other an attempted armed robbery, there was a high degree of similarity in the accounts of the complainant and the Caltex cashier having regard to some unusual features — the perpetrator spraying himself with deodorant, then using the spray and the lighter to shoot flames in a threatening manner near the face or upper body of his victims. The incidents were closely linked in time and circumstance.
Turning to the test in s 101 of the Evidence Act 2008 — whether the probative value of the coincidence evidence substantially outweighed the risk of unfair prejudice — the applicant contended that the risk of such prejudice was high.
Unfair prejudice can arise from a jury misusing or overvaluing evidence. The applicant’s submissions focused on the danger of the jury misusing the evidence, and called to mind the oft quoted passage from the 1985 Interim Report of the Australian Law Reform Commission on Evidence:
By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.[5]
[5]Australian Law Reform Commission, Evidence, Report No 26 (1985), [644], quoted, for example, in Papakosmos v R [1999] HCA 37; 196 CLR 297, [92].
In assessing the risk of unfair prejudice, one must have regard to any directions which can be given to eliminate or ameliorate the risk. In this trial, the trial judge gave a limited use direction, a permissible use direction, an anti-prejudice or sympathy direction, a separate consideration direction and an anti-propensity reasoning direction. As a general rule, it is assumed that juries follow directions.[6] There was nothing about this case which would lead one to think that the general rule did not apply. The applicant did not identify any such reason.
[6] Dupas v R [2012] VSCA 328; 40 VR 182, [114], [177].
Given the unusual common features in the accounts of the complainant and the Caltex cashier which gave the coincidence evidence particular cogency, and the likely efficacy of the jury directions, the trial judge was right in concluding that the coincidence evidence not only had significant probative value but probative value which substantially outweighed the risk of unfair prejudice. Consequently, he was also correct not to order severance.
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