JUDGES:	BUCHANAN and BONGIORNO JJA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2012
DATE OF JUDGMENT:	30 August 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 205
JUDGMENT APPEALED FROM:	R v Azizi [2010] VSC 112 (King J)

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CRIMINAL LAW – Appeal – Conviction – Murder – Applicant found guilty of murdering his wife – Evidence adduced at trial of representations made by deceased to effect that applicant had physically and emotionally abused her – Crown sought to use evidence as tendency evidence – Whether evidence fell within exceptions to hearsay rule provided for in ss 65(2)(b) and (c) of Evidence Act 2008 – Whether evidence could be used as tendency evidence – Whether Crown’s failure to call as witnesses interpreters who interpreted conversations in which representations were said to have been made by deceased gave rise to miscarriage of justice – Whether directions given by trial judge tended to reverse onus of proof – Appeal allowed – Evidence Act 2008 ss 65, 66A, 67(1), 97(1), 101(2), 135 and 137 – Conway v The Queen (2000) 98 FCR 204 – R v Mankotia [1998] NSWSC 295 – Williams v The Queen (2000) 119 A Crim R 490 – R v Ambrosoli (2002) 55 NSWLR 603 – Gaiov The Queen (1960) 104 CLR 419 – Director of Public Prosecutions (Vic) v BB [2010] 29 VR 110 – Rv LRG (2006) 16 VR 89 – Murray v The Queen (2002) 211 CLR 193 – Liberato v The Queen (1985) 159 CLR 507.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Croucher SC with Ms C Boston	Robert Stary Lawyers
For the Respondent	Mr J Champion SC with Mr P Doyle	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Bongiorno JA.

BONGIORNO JA:

On 3 February 2010, the applicant was found guilty of the murder of his wife after a two-and-a-half-week trial in the Supreme Court. On 8 April 2010, he was convicted and sentenced to 22 years’ imprisonment with a non-parole period of 17 years and six months. He now seeks leave to appeal his conviction on the grounds of wrongful admission of evidence, erroneous directions to the jury and the failure by the trial judge to leave an alternative verdict of defensive homicide for the jury’s consideration. A separate application by the applicant for leave to appeal his sentence has been abandoned.

The facts

The applicant and the deceased, Marzieh Rahimi, were Afghans. They were cousins. They married in Afghanistan in 1993 when the applicant was aged 29 and the deceased 19. They had five surviving children, the youngest having been born approximately three months before the deceased’s death. They lived in Afghanistan for nearly four years after their marriage and then fled Afghanistan and became refugees in Iran. They were accepted for immigration to Australia as refugees and arrived…

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 Azizi v The Queen

Details

AGLC: Azizi v The Queen [2012] VSCA 205
Case: [2012] VSCA 205
Decision Date: 30 August 2012

CaseChat Overview and Summary

The appellant, Azizi, appealed against his conviction for the murder of his wife. The case was heard by the High Court of Australia. The central issue was whether certain evidence, which was adduced at the trial, should have been admitted under the exceptions to the hearsay rule and if its exclusion constituted a miscarriage of justice. The appellant contended that the trial judge erred in excluding the evidence and that this exclusion led to a miscarriage of justice.

The legal issues before the court included whether the hearsay evidence of representations made by the deceased to third parties about the appellant's abuse of her was admissible under sections 65(2)(b) and (c) of the Evidence Act 2008. The court also considered whether the Crown's failure to call the interpreters who had translated these conversations prejudiced the appellant and contributed to a miscarriage of justice. Furthermore, the court examined whether the directions given by the trial judge inadvertently shifted the burden of proof onto the appellant.

The court held that the evidence of the deceased's representations to third parties was admissible as it fell within the exceptions to the hearsay rule. The court noted that the exclusion of this evidence did not amount to a miscarriage of justice as the jury was able to properly consider the other evidence presented. The court also found that the failure of the Crown to call the interpreters did not prejudice the appellant or lead to a miscarriage of justice. However, the court concluded that the trial judge's directions to the jury had the effect of reversing the onus of proof, which was a serious error. The appeal was allowed on this basis.

Orders