Abdirizak Jama Hashi v The Queen - [2016] VSCA 288

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0017

ABDIRIZAK JAMA HASHI	Applicant
V
THE QUEEN	Respondent

---

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))

---

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.

---

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…

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.

Keep reading for free

Create a free CaseChat account to read Abdirizak Jama Hashi v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSCA 288
Decision Date: 25 November 2016

CaseChat Overview and Summary

In the case of Abdirizak Jama Hashi v The Queen, the appellant contested his conviction for the offence of rape. The dispute was adjudicated by the High Court of Australia. The appellant was found guilty by the Supreme Court of South Australia, and subsequently, he sought leave to appeal against this conviction. The primary contention was the absence of consent in the sexual encounter, and the admissibility of coincidence evidence.

The legal issues the court had to resolve centred on the interpretation and application of the Evidence Act 2008. Specifically, the court needed to consider whether the trial judge correctly exercised his discretion to sever the coincidence evidence from the main body of the case and whether the evidence was admissible under sections 98 and 101 of the Act. The appellant argued that the trial judge erred in allowing the coincidence evidence, which prejudiced the defence.

The High Court found that the trial judge had correctly exercised his discretion to admit the coincidence evidence. The court concluded that the evidence was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. The High Court held that the trial judge's decision was within the bounds of an acceptable range of responses and thus dismissed the application for leave to appeal. The reasoning focused on the proper application of the Evidence Act and the balancing of probative value against potential prejudice. Consequently, the appellant's conviction was upheld.

Orders