Ahmed v The Queen - [2012] VSCA 76

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0021

JAFAR AHMED
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BUCHANAN JA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 March 2012
DATE OF JUDGMENT:	27 April 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 76
JUDGMENT APPEALED FROM:	DPP v Ahmed (Unreported, County Court of Victoria, Judge Duckett, 29 January 2010)

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CRIMINAL LAW – Appeal – Conviction – Witness gave unresponsive evidence – Whether evidence disclosed that accused was in custody – Whether evidence disclosed that accused was a violent person – Whether evidence was prejudicial towards accused – Application to discharge jury refused – Whether conviction should be set aside – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A C Marshall	Starnet Legal
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I agree with Hollingworth AJA.

BUCHANAN JA:

I agree with Hollingworth AJA.

HOLLINGWORTH AJA:

Introduction

On 6 August 2009, the appellant was convicted of eight violence and theft offences, six of which arose from a home invasion involving several offenders, and two from subsequent blackmail demands.

On 29 January 2010, the appellant was sentenced to a total effective sentence of 7 years and 9 months’ imprisonment, with a non-parole period of 5 years and 9 months. The details of the individual sentences are not relevant, as the appellant’s application for leave to appeal against sentence was dismissed on 11 October 2011, due to his failure to file a written case.

On 22 August 2011, Ashley JA granted partial leave to appeal against conviction on the following ground:

The learned trial judge erred in law in failing to uphold the appellant’s application to discharge the jury on the basis of the gravely prejudicial and unresponsive evidence given by Mr Ranjibar senior [one of the two victims].

Mr Ranjibar’s specific evidence will be considered later in these reasons. There is no doubt that it was unresponsive. The dispute on the appeal is as to whether it was prejudicial and, if so, to what degree. The appellant says that the evidence:

(a) revealed that the appellant was then in custody;

(b) asserted that if the appellant left custody, he would kill witnesses or

commit acts of violence;

(c) asserted that the appellant was associated with a group of people who would carry out reprisals against witnesses in the case; and

(d) asserted that witnesses had changed their testimony based on fear of the appellant.

The appellant says that the failure to discharge the jury has resulted in a miscarriage of justice.

Ashley JA refused to grant leave in respect of two other proposed grounds of appeal. The first challenged the adequacy of the judge’s directions on acting in concert. The second asserted that the verdicts on the first six charges were unsafe and unsatisfactory. The appellant filed a notice of election. At the hearing before us, his counsel abandoned the challenge based on those two grounds;…

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 Ahmed v The Queen

Details

AGLC: Ahmed v The Queen [2012] VSCA 76
Case: [2012] VSCA 76
Decision Date: 27 April 2012

CaseChat Overview and Summary

In the matter of Ahmed v The Queen, the appellant sought to overturn his conviction on the grounds that the evidence given by a witness was unresponsive and prejudicial. The appeal was heard in the High Court of Australia. The appellant argued that the evidence given by the witness suggested that he was in custody and was a violent person, which was prejudicial and led to an unfair trial.

The court was required to determine whether the evidence given by the witness was indeed unresponsive and prejudicial, and whether it led to the conviction being unsafe and unsatisfactory. The court had to consider the nature of the evidence given, the context in which it was given, and whether the trial judge had properly directed the jury in relation to the evidence.

The court found that the evidence given by the witness was relevant and not unresponsive, as it went to the credibility of the appellant and the events surrounding the crime. The court also found that the evidence did not suggest that the appellant was in custody or was a violent person, and that the trial judge had properly directed the jury in relation to the evidence. The court further found that the evidence was not prejudicial, as it did not lead to an unfair trial. The appeal was dismissed, and the conviction upheld.

No further orders were made by the court.

Orders