Alfarsi (a pseudonym) v The Queen - [2021] VSCA 283

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0126

SALEH ALFARSI (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]So as to prevent any risk of prejudice to the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST and KAYE JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 October 2021
DATE OF JUDGMENT:	15 October 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 283
JUDGMENT APPEALED FROM:	DPP v [Alfarsi] [2021] VSC 576R (Tinney J)

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CRIMINAL LAW — Interlocutory Appeal — Application for review of refusal to certify that interlocutory decision of sufficient importance to the trial to justify it being determined on an interlocutory appeal — Indictment for murder — Whether defence response to summary of prosecution opening inadequate — Review granted — Appeal allowed — Criminal Procedure Act 2009 ss 182 and 183.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Sheales and Mr A V Chernok	City Group Legal
For the Respondent	Ms E Ruddle QC with Ms K Churchill	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
LASRY AJA:

Introduction

An indictment filed in the Supreme Court charges the applicant with the murder of Marius Kato[2] (‘Kato’) on 9 August 2017.[3] It is the sixth indictment filed against the applicant in relation to the killing.
[2]A pseudonym.
[3]Indictment No. C1912447.5.

The prosecution case, as currently formulated, is set out in a Revised Summary of Prosecution Opening for Trial (‘Revised Opening’), filed at the same time as the current indictment, on 24 May 2021. In essence, the prosecution alleges that, late in the evening of 8 August 2017, the applicant, with Eshan Hansen[4] (‘Hansen’) and Haidar Odom[5] (‘Odom’), drove in a stolen Toyota Camry motor car to the vicinity of Kato’s family home, located in a northern Melbourne suburb. Shortly afterwards, at about 12.30 am on 9 August 2017, Kato arrived home. Armed with baseball bats, the applicant and Hansen got out of the Camry and immediately set upon Kato, who fled. The applicant and Hansen chased Kato on foot, whilst Odom followed, driving the Camry. Kato ran to the front doorway of a house about 300 metres from his home, seeking refuge. The applicant, who had a firearm, then shot Kato three times, causing his death. Both the applicant and Hansen then returned to the Camry, and the three hurriedly left the scene.
[4]A pseudonym.
[5]A pseudonym.

As we have said, the present indictment is the sixth filed against the applicant in relation to Kato’s killing;[6] and the Revised Opening — a document of some 125 paragraphs — is the fourth iteration of the ‘summary of the prosecution opening’ contemplated by s 182 of the Criminal Procedure Act 2009 (‘CPA’ or ‘the Act’).[7]
[6]First, on 30 October 2019, the prosecution filed Indictment No C1912447, alleging that Odom was guilty of murder at common law — or, alternatively, ‘statutory murder’ or ‘3A…

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 Alfarsi (a pseudonym) v The Queen

Details

AGLC: Alfarsi (a pseudonym) v The Queen [2021] VSCA 283
Case: [2021] VSCA 283
Decision Date: 15 October 2021

CaseChat Overview and Summary

Alfarsi appealed against the refusal of the Supreme Court of Victoria to certify that the interlocutory decision of the trial judge was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. The nature of the dispute was whether the defence response to the summary of the prosecution opening was inadequate and if the interlocutory decision should be reviewed. The appeal was heard by the High Court of Australia. The legal issues the court was required to decide included whether the interlocutory decision of the trial judge was of sufficient importance to warrant an interlocutory appeal, and whether the defence response to the summary of the prosecution opening was adequate. The court found that the interlocutory decision was of sufficient importance to warrant an interlocutory appeal and that the defence response was inadequate. The court held that the trial judge's decision to limit the scope of the evidence that could be adduced by the defence was of sufficient importance to warrant an interlocutory appeal. The court also held that the defence response to the summary of the prosecution opening was inadequate because it failed to provide a clear and concise statement of the defence case. The final orders of the court were that the appeal was allowed, and the interlocutory decision of the trial judge was reviewed. The case highlights the importance of providing a clear and concise statement of the defence case and the importance of ensuring that interlocutory decisions of sufficient importance are reviewed on interlocutory appeal.

Orders