and Abdiraham Mohamed Farah v The Queen
[2014] VSCA 163
•31 July 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0181 | |
| ABDIRAHAM MOHAMED FARAH | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | WHELAN JA and GARDE AJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 31 July 2014 | ||
DATE OF JUDGMENT: | 31 July 2014 | ||
MEDIUM NEUTRAL CITATION: | [2014] VSCA 163 | ||
JUDGMENT APPEALED FROM: | (Unreported County Court of Victoria, Judge Mullaly, Date of Sentence 26 August 2013) | ||
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ELECTION TO HAVE APPLICATION FOR LEAVE TO APPEAL AGAINST REFUSAL OF LEAVE TO APPEAL AGAINST CONVICTION DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Conviction – Election to renew application for leave – Application for leave to appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | The applicant appeared in person | |
| For the Respondent | Mr D A Trapnell QC | Mr C Hyland, Solicitor for Public Prosecutions |
WHELAN JA:
The applicant, Mr Farah, was charged with two others with a number of offences including armed robbery, allegedly committed on a taxi driver, Mr Ravinder Singh. He was convicted, after a trial before a jury, and was sentenced to a term of imprisonment.
He applied for leave to appeal his convictions on three of the charges, including the conviction on armed robbery, on the following grounds:
1. The guilty verdict on charge 1 (armed robbery) is unsafe and unsatisfactory in that it is inconsistent with the verdict of acquittal for the co‑accused, Hersi, and;
2. The guilty verdicts on each of charges 2 and 3 (threat to kill and false imprisonment) are unsafe and unsatisfactory in that the jury, if acting reasonably, must have entertained a reasonable doubt as to the guilt of the applicant.
In written submissions filed on the applicant’s behalf, and prepared by his legal advisors, the applicant made clear that the second ground was dependant on the success of the first.
The application for leave was dealt with in the first instance by Priest JA. He refused leave to appeal the convictions. He delivered detailed and comprehensive written reasons.
Mr Farah elected to renew his application for leave. The application was accordingly listed to be determined before two judges of appeal. The matter was heard today. Mr Farah appeared in person.
The submissions made by Mr Farah today were principally directed at what he asserts to be the injustice of his convictions generally rather than the grounds set out in his application.
In substance, Mr Farah made submissions as to why the account of events given by the taxi driver, Mr Singh, ought not to have been accepted by the jury.
As to the grounds set out in Mr Farah’s application, in my view it is clear that leave to appeal should be refused for the reasons set out by Priest JA. I will not repeat them but with one qualification I adopt them in full. The qualification is that the references to charges 3 and 4 in paras 5 and 12 ought, I think, to be references to charges 4 and 5.
I have reviewed the transcript myself. It is clear that there was a basis for the jury to differentiate between Mr Hersi and Mr Farah. I refer in particular to Mr Singh’s evidence‑in‑chief in the transcript at pp 361‑362, and his evidence in cross‑examination at pp 478 and 483. I also refer to the judge’s charge at transcript 812 where the judge set out the submission made by counsel for Mr Hersi as to why his client could and should be differentiated from the co‑accuseds.
As to the submissions made today by Mr Farah as to the justice of the case and Mr Singh’s credit generally, they are all matters which were put to the jury and matters which it was for the jury to weigh and decide. There is no proposed ground that the verdicts are unsafe and unsatisfactory, but even if there was such a proposed ground I would not grant leave to appeal as this is clearly not a case where it was not open to the jury to find that the charges were proven.
In my view the application should be dismissed.
GARDE AJA:
This is a renewed application for leave to appeal relating to convictions on charges of armed robbery, threat to kill and false imprisonment resulting in a total effective sentence of three years and nine months’ imprisonment. The applicant was sentenced on 26 August 2013.
There are two grounds of appeal.
1. The guilty verdict on charge 1 (armed robbery) is unsafe and unsatisfactory in that it is inconsistent with the verdict of acquittal for the co‑accused Hersi.
2. The guilty verdicts on each of charges 2 and 3 (threat to kill and false imprisonment) are unsafe and unsatisfactory in that the jury, if acting reasonably, must have entertained a reasonable doubt as to the guilt of the applicant.
In addition to the submissions, documents and materials supplied by the parties, the Court is assisted by the judgment of Priest JA, published on 14 April 2014 (‘the judgment’). I have read and reviewed the judgment.
In Ayol v The Queen,[1] Weinberg JA said:
I would also note that although this renewed application for leave to appeal is by way of rehearing, the carefully expressed reasons of a judge of this Court who has refused such leave will ordinarily be given considerable weight. That is not because this is an appeal from Priest JA’s decision refusing leave. Of course, it is not. It is rather that his Honour’s reasoning needs fully to be taken into account. In the event that no flaw or error in that reasoning can be discerned this Court would be slow to arrive at a different conclusion, and order that leave to appeal be granted.[2]
[1][2014] VSCA 151.
[2]Ibid [14].
Redlich JA said:
Where leave to appeal has been refused and is supported by careful and extensive reasons, this Court should approach an election to again seek leave on the basis that the applicant should ordinarily demonstrate by reference to the reasoning on the initial application for leave to appeal that there would be error if the conclusion that the grounds were not reasonably arguable were allowed to stand.[3]
[3]Ibid [26].
Maxwell P agreed with Weinberg and Redlich JJA.
The judgment is a written judgment of over 13 pages. In accordance with Ayol, it is entitled to considerable weight.
Subject to the qualification mentioned by the presiding judge, I have not identified any flaw or error in the reasoning set out in the judgment such as would lend any support to either of the two grounds of appeal.
The applicant has appeared in person on the hearing of this application. Predominantly he advanced reasons why he should not have been convicted by the jury in the first place.
As to the two grounds of appeal for which leave was sought, I accept the submissions put by Mr Trapnell QC, who appeared for the Crown. The roles of the applicant and Hersi were significantly different. This clearly emerges from a review of the cross–examination of Mr Singh and is reflected in the trial judge’s charge to the jury.
The applicant has not, in my view, demonstrated whether by reference to the reasoning in the judgment or otherwise that there is any arguable basis on which leave to appeal should be granted on the two grounds sought to be relied on.
For these reasons and those given by the presiding judge, with which I concur, the renewed application for leave to appeal must be dismissed.
WHELAN JA:
The application for leave to appeal is dismissed.
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