| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0142 |
| MOHAMMED NURAMIN | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | EMERTON P, KYROU and T FORREST JJA | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 20 July 2022 | |
| DATE OF JUDGMENT: | 4 October 2022 | |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 215[1] | First Revision (28 August 2023): [85], [98] Second Revision (27 February 2024): [4] n 4, [88] n 25, [90], [91] n 26, [94] n 27, [95] n 28 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1318 (Judge Carlin) | |
[1]As a new trial had initially been ordered, the publication of this judgment was previously restricted and anonymised under the name Rohan (a pseudonym) v The King. Following the High Court’s decision in R v Rohan (a pseudonym) [2024] HCA 3 to overturn this Court’s decision, the judgment is now published without the adoption of a pseudonym in place of the applicant’s name, and without redactions. The victims of the offending in this judgment remain anonymised to protect them from identification.
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CRIMINAL LAW – Appeal against conviction – Applicant and two co-offenders allegedly agreed to supply drugs to and sexually penetrate complainants aged 12 and 11 – Applicant and co-offenders each supplied drugs to complainants and sexually penetrated 11 year old complainant – Applicant charged and convicted both as principal offender in sexual offences and as complicit in sexual offences of co-offenders – Applicant and co-offenders charged and convicted either as principal offenders or as complicit offenders for supplying drugs to persons under 18 – Mens rea requirement for complicity charges where offence one of strict or absolute liability – Whether prosecution required to prove to criminal standard applicant knew complainant was a child under 12 for purpose of sexual penetration charges based on complicity – Whether prosecution required to prove to criminal standard applicant knew complainants under 18 for drug supply charges based on complicity – Prosecution required to prove to both matters to criminal standard – Jury convicted applicant of complicity charges based on misdirection about burden borne proof by prosecution – Applicant suffered substantial miscarriage of justice – Leave to appeal granted, appeal allowed – Convictions on complicity charges set aside – Applicant resentenced on remaining charges.
Crimes Act, ss 49A, 49D, 49ZC, 49W, 323, 324, 324A, 324B, 324C; Drugs, Poisons and Controlled Substances Act1981, s 71B.
Giorgianni v The Queen (1985) 156 CLR 473 and R v LK (2010) 241 CLR 177 applied.
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| Counsel | |||
| Applicants: | Ms G Connelly | ||
| Respondent: | Ms E Ruddle KC | ||
Solicitors | |||
| Applicants: | Greg Thomas Barrister & Solicitor | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
EMERTON P
KYROU JA
T FORREST JA:
On 29 April 2021, following a trial by jury, the applicant was convicted of 14 offences arising from events one evening in December 2018 when he and two co-offenders, ‘RR’ and ‘NH’, picked up two girls aged 11 and 12 respectively, supplied them with drugs and alcohol, and sexually penetrated one of them.
The Crown case was that the three men had…
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- AGLC
- Andre Rohan (a pseudonym)[1] v The King [2022] VSCA 215
- Case
- [2022] VSCA 215
- Decision Date
CaseChat Overview and Summary
The legal issues in this case involved the mens rea requirement for complicity charges where the offence is one of strict or absolute liability. The court had to determine whether the prosecution was required to prove to the criminal standard that the applicant knew the complainant was a child under 12 for the sexual penetration charges based on complicity and that the complainants were under 18 for the drug supply charges based on complicity. The court held that the prosecution was required to prove both matters to the criminal standard, and since the jury was misdirected about the burden of proof borne by the prosecution, the applicant suffered a substantial miscarriage of justice. The court found that the jury was not properly directed about the mens rea requirements for complicity in relation to the offences of supplying drugs to persons under 18 and sexual penetration of a child under the age of 12. The jury was misdirected in that it was not required to be satisfied to the criminal standard that the applicant knew the complainants were under 18 for the drug supply charges and under 12 for the sexual penetration charges.
The appeal was allowed, and the convictions on the complicity charges were set aside. The applicant was resentenced on the remaining charges. The court's decision was based on the principles set out in the cases of Giorgianni v The Queen and R v LK, which established that the prosecution must prove the mens rea elements of an offence to the criminal standard. The court held that the jury's misdirection about the burden of proof resulted in a substantial miscarriage of justice, and the convictions on the complicity charges were therefore set aside. The applicant's convictions for the remaining charges were upheld, and he was resentenced accordingly. This case highlights the importance of proper jury directions in criminal trials and the need for the prosecution to prove the mens rea elements of an offence to the criminal standard, particularly in cases involving complicity.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence Before The Court
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Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 49A of the Crimes Act provides as follows:Sexual penetration of a child under the age of 12(1)A person (A) commits an offence if —(a)A intentionally —(i)sexually penetrates another person (B); or(ii)causes or allows B to sexually penetrate A; or(iii)causes B —(A) to sexually penetrate themselves; or(B) to sexually penetrate another person (C); or(C) to be sexually penetrated by C: and(b)B is a child under the age of 12 years.(2)A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).(3)The standard sentence for an offence against subsection (1) is 10 years. A mistaken but honest and reasonable belief that the victim was 12 years of age or more is not a defence to the offence under s 49A: s 49ZC(a). Section 49A may be contrasted with s 49D, which creates the offence of sexual assault of a child under the age of 16. Section 49W(1) provides that it is a defence to a charge for an offence against s 49D(1) if, at the time of the conduct constituting the offence, the victim was 12 years of age or more and the offender reasonably believed that the victim was 16 years of age or more. Section 71B(1) of the Drugs, Poisons and Controlled Substances Act provides:Subject to subsection (1A), a person who, without being authorised by or licensed under this Act or the regulations to do so—(a)supplies a drug of dependence to a child for the purposes of the supply of that drug of dependence by that child to another person, whether a child or adult; or(b)supplies a drug of dependence to a child for the use of that drug of dependence by that child—is guilty of an indictable offence and liable to a penalty of not more than 1000 penalty units or level 4 imprisonment (15 years maximum) or both. Section 71B(4) provides: It is a defence to a charge under this section for a person charged to prove that he or she believed on reasonable grounds that the person to whom the drug of dependence was supplied was 18 years of age or older. The laws relating to criminal complicity in Victoria are found in pt II, div 1 of the Crimes Act. Division 1, headed ‘Abettors, accessories and concealers of offences’ was inserted into the Crimes Act in September 2014 by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014. The broad purpose of the amendment was described in the Explanatory Memorandum for the Bill as follows:This Subdivision will improve the substantive law of complicity by introducing simpler, internally consistent laws and abolishing problematic common law rules. These amendments will facilitate simpler, more understandable jury directions on complicity. These issues were comprehensively examined in the ‘Simplification of Jury Directions Project’ report produced by a team [led] by the Honourable Justice Mark Weinberg in August 2012. The Bill draws extensively from the recommendations in that report to reform the law of complicity. Consistently with this stated design, s 324C was enacted to abolish (subject to one exception) the common law rules of complicity in Victoria:(1)The law of complicity at common law in relation to aiding, abetting, counselling or procuring the commission of an offence is abolished.(2)The doctrines at common law of acting in concert, joint criminal enterprise and common purpose (including extended common purpose) are abolished.NoteThe common law concerning the circumstances in which a person may withdraw from an offence in which the person would otherwise be complicit is not abolished by this section.