Al-Mousawi v The Queen

[2010] VSCA 123

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0621

HASSAN AL-MOUSAWI
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH JA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 May 2010
DATE OF ORDER:	17 May 2010
DATE OF PUBLICATION OF REASONS:	1 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 123

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16 – Three co-accused tried together and convicted – Misdirection regarding cross-admissibility of admissions – Successful appeal by one co-accused – Applicant relies on same ground – Crown concession – Convictions quashed – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Boyce	Theo Magazis & Associates
For the Respondent	Mr J McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA
HANSEN AJA:

1. The Crown conceded, for reasons set out briefly below, that the appeal should be allowed, the convictions quashed and a retrial ordered. 

1. The applicant, Hassan Al-Mousawi, was charged with a number of sexual offences against one victim, along with two co-accused, Hussein Al-Assadi and Ahmad Al Qassim.  The three co-accused were tried together.  The table below sets out the offences of which Al-Mousawi was convicted:

Count	Offence	Al-Mousawi’s involvement
5	Taking part in an act of sexual penetration of a child under 16	Accessory to or an actor in concert with unknown man
9	Taking part in an act of sexual penetration of a child under 16	Accessory to or an actor in concert with Al Assadi
14	Rape	Principal offender

1. Al Qassim was convicted of two counts of sexual penetration of a child under 16 years.  On 28 August 2009 this Court quashed his conviction on two bases:[1]

·     the trial judge’s failure to warn the jury that admissions (false denials made in the record of interview of Al Assadi) were not evidence against the co-accused (Al Qassim and Al-Mousawi); and

·     deficiencies in the instructions concerning whether presence alone was sufficient for the purposes of accessorial liability or actions in concert.

[1]R v Al Qassim [2009] VSCA 192.

1. The first basis identified above corresponds with ground 1 of the present applicant’s notice of appeal.  In this regard, the applicant’s position is indistinguishable from that of Al Qassim.  That was the basis of the Crown concession, which was properly made, in our view.  It was for that reason that we quashed the applicant’s convictions and ordered a retrial.

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