and Michel Baini v The Queen - [2013] VSCA 157

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0243
MICHEL BAINI	Applicant
v
THE QUEEN	Respondent

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JUDGES	WARREN CJ, NETTLE and ASHLEY JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 June 2013
DATE OF JUDGMENT	27 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 157
JUDGMENT APPEALED FROM	R v Baini (Unreported, County Court of Victoria, Judge Wood, 16 July 2010). (Application for leave to appeal remitted from High Court of Australia (2012) 246 CLR 469)

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CRIMINAL LAW – Conviction – Blackmail – Many counts referable to one complainant and single count referable to second complainant – Prejudice to applicant born of risk of jury taking into account evidence concerning many counts referable to one complainant in relation to sole count referable to other complainant – Judge erred in refusing to sever single count to avoid such risk of prejudice – Whether judge’s error productive of substantial miscarriage of justice within meaning of s 276 of Criminal Procedure Act 2009 – Application for leave to appeal previously refused on basis of reasoning in Weiss v The Queen (2005) 224 CLR 300; Application remitted for reconsideration following successful appeal by applicant to High Court of Australia – Application of s 276 of Criminal Procedure Act 2009 in accordance with decision of High Court in Baini v The Queen (2012) 246 CLR 469 – Application for leave to appeal refused – Baini v The Queen (2012) 246 CLR 469, interpreted and applied – Andelman v R [2013] VSCA 25, referred to – Criminal Procedure Act 2009, s 276.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr Peter Faris QC with Mr T R Alexander	Defteros Lawyers
For the Crown	Mr T Gyorffy SC with Ms Diana Karamicov	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ
NETTLE JA
ASHLEY JA:

Following a 19 day trial in the County Court, the applicant was found guilty of 36 counts of blackmail on a presentment preferring 16 counts against him, 20 counts against his co-accused, Arafan, and a further 32 counts against them jointly.

On 5 October 2011, we upheld the applicant’s appeal against conviction on count 50 (blackmail against the complainant, Srour (‘the Srour count’)) on the ground that the trial judge’s refusal to sever the Srour count from the other counts (all of which alleged blackmail against another complainant, Rifat (‘the Rifat counts’)) resulted in evidence relating to the Rifat counts, which was inadmissible in relation to the Srour count, being put before the jury.[1] We were persuaded that the judge’s failure to sever the Srour count was thus productive of a substantial miscarriage of justice in relation to the Srour count.
[1](2011) 33 VR 252.

At the same time, we rejected the applicant’s application for leave to appeal against conviction on the Rifat counts because we considered that, even if the Srour count had not been included on the presentment, most of Srour’s evidence would have been admissible in relation to the…

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

Case: [2013] VSCA 157
Decision Date: 27 June 2013

CaseChat Overview and Summary

Michel Baini has applied for leave to appeal against his conviction for multiple counts of blackmail, following the dismissal of his application in the County Court of Victoria. The appeal stems from the trial where the jury heard evidence relating to multiple counts of blackmail involving one complainant, as well as a single count involving a different complainant. Baini argues that the judge's refusal to sever the single count from the multiple counts led to a risk of prejudice, as the jury might have improperly considered the evidence from the multiple counts in relation to the single count. The High Court of Australia previously found that the trial judge's error was productive of a substantial miscarriage of justice, leading to a successful appeal and a remittal of the application for reconsideration in the Court of Appeal.

The central legal issue in this case is whether the trial judge's refusal to sever the single blackmail count from the multiple counts was an error that led to a substantial miscarriage of justice under section 276 of the Criminal Procedure Act 2009. The Court of Appeal had to determine if this error was significant enough to warrant leave to appeal. This decision hinged on interpreting and applying the High Court's ruling in Baini v The Queen (2012) 246 CLR 469, which established a framework for assessing substantial miscarriages of justice. Additionally, the Court of Appeal considered the implications of Andelman v R [2013] VSCA 25 on the application of section 276.

Upon reconsideration, the Court of Appeal found that while the trial judge's error was indeed significant, it did not amount to a substantial miscarriage of justice. The court emphasised that the jury's verdict on the single count was likely based on substantial and independent evidence. Furthermore, the court noted that Baini had not demonstrated that the error had a substantial influence on the outcome of the trial. Consequently, the Court of Appeal concluded that the error did not meet the threshold required for leave to appeal under section 276 of the Criminal Procedure Act 2009. Therefore, the application for leave to appeal was refused.

In light of the Court of Appeal's decision, the application for leave to appeal was dismissed. The court reiterated that the error made by the trial judge, while significant, did not result in a substantial miscarriage of justice. The Court of Appeal's decision aligns with the principles established in Baini v The Queen (2012) 246 CLR 469 and reinforces the application of section 276 of the Criminal Procedure Act 2009. The court's ruling ensures that the substantial miscarriage of justice test remains stringent and that leave to appeal will only be granted in cases where the error has a substantial influence on the trial's outcome.

Orders