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Arafan v The Queen

Arafan v The Queen

Case [2010] VSCA 356 30 November 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

NO S APCR 2010 0242

BADER ARAFAN	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P AND WEINBERG JA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 November 2010
DATE OF JUDGMENT	30 November 2010 (reasons published 22 December 2010)
MEDIUM NEUTRAL CITATION	[2010] VSCA 356
JUDGMENT APPEALED FROM	R v Arafan (Unreported, County Court of Victoria, Judge Wood, 16 July 2010)

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CRIMINAL LAW – Application for leave to appeal against conviction – Multiple counts of blackmail – Crown case opened and conducted on basis of aiding and abetting – Change of Crown’s position after close of Crown case – Case finally put as one of joint criminal enterprise – Crown concession on appeal that miscarriage of justice resulted – Whether retrial should be ordered or acquittals entered – Application granted and appeal allowed – Judgment and verdicts of acquittal entered.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr M J Croucher	Dean Cole & Associates
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA:

On 30 November 2010, the Court heard and determined an application for leave to appeal against conviction by the applicant, Bader Arafan. The Court ordered that leave to appeal be granted, and that the appeal be allowed. It also ordered that there be judgment and verdicts of acquittal entered on all counts. The Court indicated that it would publish its reasons in due course. These are those reasons.

The applicant was jointly presented in the County Court at Melbourne, together with Michel Baini, on an indictment containing some 68 counts of blackmail in all. The applicant stood trial on 51 of those counts. After a trial lasting some 19 days, the applicant was convicted on 13 counts, acquitted by direction on 21 counts, and acquitted by the jury on 17 counts. Baini was convicted on 36 counts, acquitted by direction on three counts, and acquitted by the jury on nine counts.

Circumstances surrounding the offending

In late 2003 and early 2004, the victim of this offending, Hassan Rifat, found himself being subjected to threats and violence at the hands of a business competitor, one Tony Hakim. According to Rifat, the level of violence directed towards him and his family was both significant and escalating. He claimed that, on one occasion, he was menaced by one of Hakim’s operatives with a pistol.

A mutual friend of both Baini and the applicant, Mustafa Unver, suggested to Rifat that he could introduce him to someone who would protect him from Hakim. At that time, Rifat was especially vulnerable as he had gone to the police in early 2004 to seek their assistance, and had been told that the police would do nothing.

The trial judge, in his sentencing remarks, described what then happened. Baini travelled to Sydney on a number of occasions throughout 2004 in an effort to persuade Hakim to leave Rifat alone. At that time, Rifat owned and operated…

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 Arafan v The Queen

Details

AGLC: Arafan v The Queen [2010] VSCA 356
Case: [2010] VSCA 356
Decision Date: 30 November 2010

CaseChat Overview and Summary

The case of Arafan v The Queen involved the appellant, who was convicted on multiple counts of blackmail. The appellant applied for leave to appeal against the conviction, which was heard by the High Court of Australia. The Crown initially presented its case on the basis of aiding and abetting, but changed its position after the close of its case, presenting the case as one of joint criminal enterprise. The Crown conceded on appeal that a miscarriage of justice had resulted from the change in the basis of the case.

The primary legal issue before the court was whether the appellant should be granted a retrial or whether acquittals should be entered due to the Crown's change in position. The court had to consider the impact of the change in the Crown's case on the fairness of the trial and whether the appellant had been prejudiced by this change. The court also had to determine whether the change in the basis of the case amounted to a miscarriage of justice and whether the appellant was entitled to a retrial or an acquittal.

The court found that the change in the Crown's case amounted to a miscarriage of justice and that the appellant had been prejudiced by this change. The court held that the appellant was entitled to an acquittal on all counts, and the appeal was allowed. The court set aside the convictions and entered judgments of acquittal. The court held that a retrial would not be appropriate in the circumstances and that the appellant should be acquitted. The court emphasised the importance of ensuring that criminal trials are conducted fairly and that any changes in the basis of the case are properly managed to avoid miscarriages of justice.

The final orders of the court were that the appeal was allowed, the convictions were set aside, and judgments of acquittal were entered on all counts. The court emphasised the importance of ensuring that criminal trials are conducted fairly and that any changes in the basis of the case are properly managed to avoid miscarriages of justice. The court held that a retrial would not be appropriate in the circumstances and that the appellant should be acquitted.

Orders