FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJ
MICHEL BAINI APPELLANT
AND
THE QUEEN RESPONDENT
Baini v The Queen
[2012] HCA 59
12 December 2012
M87/2012
ORDER
1. Appeal allowed.
2.Set aside paragraphs 5 to 12 of the order of the Court of Appeal of the Supreme Court of Victoria made on 5 October 2011.
3. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for further consideration in accordance with the reasons of this Court.
On appeal from the Supreme Court of Victoria
Representation
P F Tehan QC with T R Alexander for the appellant (instructed by Defteros Lawyers)
T Gyorffy SC with E H Ruddle for the respondent (instructed by Solicitor for Public Prosecutions (Vic))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Baini v The Queen
Criminal law – Appeal – Error or irregularity in trial – Failure to sever counts – Appellant charged with numerous counts of blackmail of one victim and one count of blackmail of another victim – Trial judge refused application to sever trial of separate count – Court of Appeal held that trial judge erred in refusing application – Whether refusal to sever resulted in "substantial miscarriage of justice" within meaning of s 276 of Criminal Procedure Act 2009 (Vic).
Words and phrases – "substantial miscarriage of justice".
Section 276(1)(b) of the Criminal Procedure Act 2009 (Vic) ("the Act") obliges the Court of Appeal to allow an appeal against conviction if the appellant satisfies the Court that "as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice". The appellant (together with another accused) was charged with, and found guilty of, numerous counts of blackmailing one victim (Hassan Rifat)[1]. The appellant was also charged with, and found guilty of, one count of blackmailing a second victim (Nicholas Srour). All the counts were tried together.
It is now accepted that the single count of blackmailing Mr Srour should have been tried separately. Because the counts were tried together, the jury heard both victims describe the demands and the menaces the appellant was alleged to have made to each. The jury thus heard Mr Srour's evidence to the effect that the appellant was "a standover man" and that the appellant had told him that he (the appellant) used standover tactics, bullying and assaulting people in order to get things. It is now accepted that at least some of the evidence of one victim was not relevant in the trial of the count or counts concerning the other victim.
The Court of Appeal held[2] that the appellant had shown a substantial miscarriage of justice in respect of the trial…
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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AGLC
Baini v The Queen [2012] HCA 59
Case
[2012] HCA 59
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, Baini, against a decision of the Court of Appeal of the Supreme Court of Victoria. The dispute concerned the appellant's conviction on multiple counts of blackmail. A key issue at trial was the refusal by the trial judge to sever one count of blackmail relating to a different victim from the counts relating to the primary victim.
The legal issues before the High Court were whether the Court of Appeal had correctly applied the test for a "substantial miscarriage of justice" under section 276 of the *Criminal Procedure Act 2009* (Vic). Specifically, the Court had to determine if the Court of Appeal erred in its assessment of the evidence and whether the jury's verdicts were inevitable, rather than merely open to them, in light of the evidence admitted at trial.
The High Court reasoned that the Court of Appeal's observations regarding the strength of the Crown's case were made in the context of determining whether the verdicts were unreasonable, not whether they were inevitable. The Court held that the Court of Appeal had not adequately considered whether the jury's verdicts on the relevant counts were inevitable, a necessary step in determining if there had been a substantial miscarriage of justice. Consequently, the High Court allowed the appeal, set aside parts of the Court of Appeal's order, and remitted the matter back to the Court of Appeal for further consideration of whether a substantial miscarriage of justice had occurred.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside paragraphs 5 to 12 of the order of the Court of Appeal of the Supreme Court of Victoria made on 5 October 2011.
3. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for further consideration in accordance with the reasons of this Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ
GAGELER J
As to the second point, it is of the utmost importance to recognise that the Court of Appeal's observations about the state of the evidence at trial were made in the course of considering the appellant's argument that the verdicts were unreasonable or could not be supported having regard to the evidence. It was in that context that Ashley JA said[34]:"the criticisms which [the appellant's] counsel made as to the state of the evidence do not bespeak a situation in which the jury should have had a reasonable doubt of the [appellant's] guilt. Having considered the evidence, I entertain no such doubt. ... [I]n my view the jury was in [sic] entitled to conclude, as I do, that the Crown case was overwhelming." (emphasis added)The point made by Ashley JA was directed to the ground raised: was the verdict open to the jury? And the conclusion which he reached was expressed in terms apposite to that ground: the jury should not have had a reasonable doubt and they were entitled to return the verdicts which they did. But the reasoning at no time considered, as s 276(1)(b) and (c) required, whether the jury's verdicts were not only open but inevitable. [34](2011) 213 A Crim R 382 at 403 [101]‑[102].Conclusion and orders The appellant having demonstrated to the Court of Appeal that evidence was received at the trial of the Rifat counts that should not have been admitted, it was well open to the Court of Appeal to be satisfied that there was a substantial miscarriage of justice in respect of those counts. Whether, having regard to the whole of the evidence at trial, the Court of Appeal could conclude that the verdicts the jury returned in respect of the Rifat counts were inevitable (because the jury could not have entertained a reasonable doubt) is a question which has not been considered by that Court. It cannot be decided by this Court because it does not have the full record of the trial available to it. Because the Court of Appeal did not examine whether the appellant's convictions on the Rifat counts were inevitable, the matter should be remitted to the Court of Appeal for it to consider again whether there was "a substantial miscarriage of justice" in respect of the Rifat counts. The appeal to this Court should be allowed and the matter remitted to the Court of Appeal for its further consideration. Introduction The "modern approach to statutory interpretation"[35]:"(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy". (footnote omitted)[35]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2. That modern contextual approach ordinarily requires that statutory language re-enacted in an identical form after it has acquired a settled judicial meaning be taken to have the same meaning[36]. It equally requires that, changes of drafting style aside, statutory language re-enacted in an altered form after it has acquired a settled judicial meaning be taken to have a different meaning[37]. Were it otherwise, legislative policy choices would be blurred and orderly legislative reform would be impeded.[36]Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106; [1994] HCA 34.[37]Amalgamated Wireless (A/sia) Ltd v Philpott (1961) 110 CLR 617 at 624; [1961] HCA 31.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ,
GAGELER J