Abukar v The Queen - [2021] VSCA 238

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0104

SALAH ABUKAR	Applicant
v
THE QUEEN	Respondent

S EAPCR 2020 0105

DAWUUD ABDI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU, McLEISH and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 August 2021
DATE OF JUDGMENT:	31 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 238
JUDGMENT APPEALED FROM:	[2020] VSC 225 (Tinney J)

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CRIMINAL LAW – Appeal – Conviction – Applicants tried jointly with two other co‑accused – No application for separate trials – Each applicant charged with intentionally causing serious injury and affray – Co-accused charged with murder – Co-accused’s record of interview played to jury – Co-accused subsequently pleaded guilty to lesser charge in course of trial – Applicants then applied for discharge of jury on basis co‑accused’s record of interview prejudicial to them – Whether judge erred by refusing to discharge jury — Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Abukar	Mr S Kenny	Emma Turnbull Lawyers
For the Applicant Abdi	Mr C Pearson	Tony Hannebery Lawyers
For the Respondent	Ms E Ruddle QC	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
McLEISH JA
EMERTON JA:

Introduction and summary

The applicants, Salah Abukar (‘Abukar’) and Dawuud Abdi (‘Abdi’), were tried together before a Supreme Court judge and jury with two other co‑accused, Abdifatah Sharif (‘Abdifatah’) and Ahmed Sharif (‘Ahmed’). Abdifatah and Ahmed are brothers and Abukar is their cousin. None of the accused applied for a separate trial.

The applicants and Abdifatah were each indicted on one charge of intentionally causing serious injury (charge 2), one charge of recklessly causing serious injury (charge 3) and one charge of affray (charge 4). Ahmed was indicted on one charge of murder (charge 1). The charges arose out of the events in Castley Crescent, Braybrook on the evening of Saturday, 9 December 2017, when Paul Duncanson (‘Paul’) was killed by a Hyundai Getz hatchback being driven by Ahmed, and Paul’s brother Sean Duncanson (‘Sean’) was seriously injured.

The jury was empanelled on 7 October 2019. On 28–29 October 2019, the prosecution played to the jury Ahmed’s record of interview (‘Ahmed’s ROI’), without objection from the applicants or Abdifatah. The transcript of Ahmed’s ROI became an exhibit and was provided to the jury. The Crown case concluded on 1 November 2019. On 6 November 2019, in the fifth week of the trial, Ahmed pleaded guilty to the lesser charge of manslaughter and the trial continued without him.

On 7 November 2019, each of the applicants, but not Abdifatah, applied for the jury to be discharged. The applicants argued that certain passages of Ahmed’s ROI, which were now irrelevant to any facts in issue at trial, were highly prejudicial to them. On the same day, the judge refused the applications. The transcript of Ahmed’s ROI and all other exhibits which only concerned the case against him were withdrawn from the jury on 8 November 2019.

The jury commenced its deliberations on 15…

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 Abukar v The Queen

Details

AGLC: Abukar v The Queen [2021] VSCA 238
Case: [2021] VSCA 238
Decision Date: 31 August 2021

CaseChat Overview and Summary

In the matter of Abukar v The Queen, the applicants appealed against their convictions, having been tried jointly with two co-accused. The primary issue was whether the trial judge erred in refusing to discharge the jury after a co-accused’s recorded interview was played, subsequently leading to a plea of guilty to a lesser charge. The applicants argued that the introduction of this evidence was prejudicial and warranted a discharge. The court was tasked with determining whether the judge’s decision was correct and if the prejudice to the applicants was such that it necessitated a discharge of the jury.

The legal issues centred on the admissibility and potential prejudice of the co-accused's recorded interview, the judge's discretion in managing the trial process, and the standard of proof required to discharge a jury. The applicants contended that the judge should have discharged the jury as the evidence introduced was highly prejudicial, impacting their right to a fair trial. The court examined the circumstances under which a judge might exercise the discretion to discharge a jury and whether the prejudice to the applicants was insurmountable.

The court concluded that the judge's decision not to discharge the jury was within their discretion. The court found that the evidence, although potentially prejudicial, did not reach the threshold of compelling the judge to discharge the jury. The court also held that the prejudice was not so significant as to vitiate the trial. Therefore, the application for leave to appeal was refused, affirming the trial judge's decision.

No further orders were made as the application for leave to appeal was dismissed. The applicants’ convictions remained in place, and the trial judge's handling of the evidence was upheld as appropriate.

Orders