PARTIES: Jasim Alseedi - Appellant The Crown - Respondent
JUDGMENT OF: Giles JA Hidden J McCallum J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2008/11/0729
LOWER COURT JUDICIAL OFFICER: Berman DCJ
LOWER COURT DATE OF DECISION: 3 October 2008 (Sentence)
COUNSEL: W Terracini SC & J Trevallion - Appellant P Leask - Crown
SOLICITORS: B Archbold - Appellant S Kavanagh - Crown
CATCHWORDS: Criminal law - conviction appeal - charges of indecent assault and sexual intercourse without consent - whether open to jury to be satisfied of guilt beyond reasonable doubt - on facts, was open - no question of principle - sentence appeal - error in decling to find good prospects of rehabilitation - only stated reason that continued to maintain innocence - other favourable matters - gave stated reason undue weight without proper regard to the other matters - offender resentenced.
DECISION: (1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted; appeal allowed. (3) Uphold the sentences on Counts 1 and 2. Quash the sentence pronounced on 3 October 2008 on Count 3 in the District Court. In lieu thereof sentence the appellant to imprisonment with a non-parole period of 4 years commencing on 11 August 2008 and expiring on 10 August 2012 and a balance of term of 3 years commencing on 11 August 2012 and expiring on 10 August 2015.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
CCA 2008/4257 DC 2008/11/0729
GILES JA HIDDEN J McCALLUM J
Thursday 16 July 2009
Jasim ALSEEDI v REGINA
Judgment
GILES JA: The appellant stood trial on two charges of indecent assault and one of sexual intercourse without consent. He was found guilty, and was sentenced to imprisonment for an overall non-parole period of 5 years and total term of 8 years.
The appellant appealed against conviction and applied for leave to appeal against sentence. The grounds of appeal were -
“1.The verdict of the Jury was unreasonable having regard to the evidence.
2.The sentence imposed by his Honour Judge Berman in the District Court of New South Wales on 3 October 2008 was excessive.”
For the reasons which follow, the appeal against conviction should be dismissed, and leave to appeal against sentence should be granted and the appeal upheld as to the sentence for the offence of sexual intercourse without consent.
The facts in outline
A detailed account of the facts is not necessary in order to appreciate and deal with the appellant’s submissions. The essential question at the trial was whether the appellant had forced himself upon the complainant, it being the appellant’s case that the complainant had initiated and encouraged what took place.
The complainant was a…
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.
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Details
AGLC
Alseedi v R [2009] NSWCCA 185
Case
[2009] NSWCCA 185
Decision Date
CaseChat Overview and Summary
The appeal against conviction in this case was brought by Alseedi, the appellant, against the Crown, represented by the respondent. The appellant was convicted of indecent assault and sexual intercourse without consent. The appeal focused on whether the jury was properly directed on the standard of proof required for conviction and whether there was an error in the sentence imposed. The High Court of Australia was tasked with determining these issues.
The primary legal issues before the court were whether the jury was properly instructed on the standard of proof beyond reasonable doubt and whether there was an error in the sentence imposed by the lower court. The court considered whether the jury could reasonably have been satisfied beyond reasonable doubt of the appellant's guilt, given the evidence presented. The court also examined whether the sentence imposed was appropriate, particularly in light of the appellant's prospects for rehabilitation.
The court held that the jury was properly directed on the standard of proof, and there was sufficient evidence to satisfy the jury beyond reasonable doubt of the appellant's guilt. The inconsistencies and discrepancies in the evidence were for the jury to weigh and determine their significance. Regarding the sentence, the court found that the lower court erred in not adequately considering the appellant's prospects for rehabilitation. The court noted that while the appellant maintained his innocence, other favorable factors should have been given proper weight. Consequently, the sentence was deemed inappropriate, and the appeal against the sentence was upheld.
The final orders of the court were to dismiss the appeal against conviction and to grant leave to appeal against the sentence. The appeal against the sentence was upheld, leading to the resentencing of the appellant for the offence of sexual intercourse without consent.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons which follow, the appeal against conviction should be dismissed, and leave to appeal against sentence should be granted and the appeal upheld as to the sentence for the offence of sexual intercourse without consent.The facts in outline A detailed account of the facts is not necessary in order to appreciate and deal with the appellant’s submissions. The essential question at the trial was whether the appellant had forced himself upon the complainant, it being the appellant’s case that the complainant had initiated and encouraged what took place. The complainant was a store manager in a supermarket in a Sydney suburb. The appellant from time to time worked at the supermarket as a loss prevention officer, depending on where his employer sent him. On 5 December 2006 the complainant commenced her shift at 6 pm. The appellant was due to finish his shift at 8pm. Another loss prevention officer, Mr Fouad Fanosh, was also on duty. The complainant’s duties included faxing to head office the time sheets and other paperwork in relation to loss prevention officers at the end of their shifts. On the Crown case, on occasions earlier in the year the appellant had said things to the complainant indicating an interest in her, but she had brushed him off. On the evening of 5 December 2006, the appellant remarked in the tea room on the complainant’s beauty to the day shift manager, Mr Chris Gunn, in the presence of the complainant and her sister Selma who also worked at the supermarket. The appellant then approached the complainant while she was having a cigarette outside just before starting work. He said that he really liked her and wanted to spend ten minutes with her. She said she was not interested. The appellant approached the complainant again in the supermarket as she was marking prices, saying she was such a beautiful person. He asked her to fax his paper work. She refused as it was too early, and told him to go and do some work. According to the complainant, she received a page from Selma at the back dock and went there to help unload a truck. The complainant was pushing a cage loaded with goods in the back dock when she saw the appellant motioning to her. She said she ignored him and hid behind a cage. The appellant went into the back dock and asked the complainant to fax his paperwork. She agreed, as it was approaching 8 pm. They went upstairs to the manager’s office, the complainant intending to get a max unit (it seems a device concerned with prices). The complainant opened the office with a key. Across the passageway was the cash office containing the fax machine. As they were going upstairs the appellant said to the complainant that he just wanted to spend ten minutes with her, which she said was not going to happen. When they were in the manager’s office the complainant sat at the desk and began to make entries in the computer concerning pricing. The appellant put his paperwork in front of her and said he wanted to talk to her. She asked what there was to talk about, and he said something in Iraqi. The complainant said in evidence that she did not quite pick it up except for a part she did understand, which was “If you do tell anybody I hope the worst happens to you”.
Evidence
Evidence Before The Court
The appellant submitted that the test was not satisfied because of inconsistencies within the complainant’s evidence and inconsistencies between the complainant’s evidence and the evidence of other witnesses. He also submitted that the complainant’s demeanour in some of the CCTV footage was not consistent with her account of events.(a) The complainant’s evidence The appellant asserted four inconsistencies. First, the complainant’s understanding of Iraqi. The complainant is Lebanese. As I have said, her evidence included that in the manager’s officer the appellant said something in Iraqi of which she understood, “If you do tell anybody I hope the worst happens to you”. The complainant agreed that she told the police that the appellant was Iraqi and would attempt to say things to her in Iraqi which she could not understand because she was Lebanese, and that she also told Mr Gunn at one point that she did not understand what Iraqi people were saying because it was not her language. The appellant said that this was inconsistent with her understanding part of what was said in the manager’s office. The submission failed to have regard to other evidence. The complainant’s evidence included that Lebanese and Iraqi had a similar dialect, and that she could understand some Iraqi words. She said that she had told the police that she would try to remember what had been said, and that she had done so much later. General inability to understand Iraqi is consistent with limited understanding of some words. It was a matter for the jury to assess whether, on the evidence as a whole, there was inconsistency, and to the extent that there was what effect that had on their acceptance of the complainant’s evidence. Secondly, the complainant at the bottom of the stairs. The complainant said that as she sat on the stairs people walking past asked what was wrong, she said that she was fine, and other than that she “didn’t say anything to anybody”. The appellant submitted that she conceded in cross-examination that she was on the phone, probably to her sister Antoinette and probably either telling her sister to come to work or to bring some food to eat. The complainant did not concede this; she only agreed that a particular phone number was her sister’s number. Even if she had, the earlier answer was in the context of speaking to persons passing as she sat on the stairs. Again, it would have been a matter for the jury to assess any inconsistency and its effect. Thirdly, hiding in the dock area. The complainant said that when the appellant approached her in the dock area she hid behind a cage in order to avoid him. She said she “mentioned” that to Detective Senior Constable Hodges. It was not in her statement. Detective Senior Constable Hodges said that she did not recall the complainant telling her that she hid behind the cage, and if she had been told it she would have included it in the statement. A “mention” may not have triggered the police officer’s attention. There was arguably a discrepancy, although scarcely an inconsistency in the complainant’s evidence, and again it was for the jury to determine the significance, if any, of the matter.