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Fares v The King

Fares v The King

Case [2024] VSCA 108 28 May 2024

Miscarriage of Justice

Youth Mitigation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0204

ALLAN FARES	Applicant
v
THE KING	Respondent

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JUDGES:	ORR, KAYE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2024
DATE OF JUDGMENT:	28 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 108
JUDGMENT APPEALED FROM:	[2022] VSC 554 (Tinney J)

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CRIMINAL LAW – Appeal – Conviction – Murder (2 charges), attempted murder (2 charges) and intentionally causing serious injury – Tendency evidence – Defence adduced evidence at trial of character and disposition of co-accused’s father – Prosecution relied on evidence in cross-examination and final address – Whether prosecution’s use of character evidence invited jury to engage in impermissible tendency reasoning – Whether trial judge erred in declining to direct jury not to use evidence as tendency evidence – Whether substantial miscarriage of justice – Leave to appeal refused.

Evidence Act 2008, s 97.

Awad v The Queen (2022) 275 CLR 421; Baini v The Queen (2012) 246 CLR 469, considered.

CRIMINAL LAW – Appeal – Sentence – Murder (2 charges), attempted murder (2 charges) and intentionally causing serious injury – ‘Dreadful’ case – Life imprisonment – Non-parole period 27 years – Accused aged 21 years at date of offence – Whether judge failed to properly consider youth and maturity of accused as mitigating factor in sentencing – Whether trial judge engaged in two-stage sentencing – Whether trial judge erred in approach to standard sentence provisions – Whether sentence manifestly excessive – Leave to appeal refused.

Sentencing Act 1991, ss 5, 5A, 5B; Crimes Act 1958, s 3.

DPP v Pan [2022] VSCA 98, distinguished; Azzopardi v The Queen (2011) 35 VR 43; Brown v The Queen (2019) 59 VR 462; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; R v Kilic (2016) 259 CLR 256, considered.

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Counsel
Applicant:		Ms G F Connelly with Ms A Balkin
Respondent:		Ms D I Piekusis KC with Ms S Lenthall
Solicitors
Applicant:	Galbally & O’Bryan
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

ORR JA
KAYE JA
T FORREST JA:

The applicant, and his co-accused Jacob Elliott (‘Elliott’), were each convicted by the jury empanelled on their trial, of two charges of murder, two charges of attempted murder, and one charge of causing serious injury intentionally.
Following a plea made on his behalf, the applicant was sentenced to a total effective sentence of life imprisonment, with a non-parole period of 27 years as follows:

Charge Offence Maximum Sentence Cumulation

1 Murder Life imprisonment Life imprisonment Base

2 Murder Life imprisonment Life imprisonment Nil

3 Attempted murder 25 years’ imprisonment 12 years’ imprisonment Nil

4 Attempted murder 25 years’ imprisonment 12 years’ imprisonment Nil

8 Causing serious injury intentionally 20 years’ imprisonment 5 years’ imprisonment Nil

Total Effective Sentence: Life imprisonment

Non-Parole Period: 27 years

Other relevant orders: Declaration (sentenced as a serious violent offender on charges 2–4, 8)

The co-offender, Elliott, was sentenced to a…

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 Fares v The King

Details

AGLC: Fares v The King [2024] VSCA 108
Case: [2024] VSCA 108
Decision Date: 28 May 2024

CaseChat Overview and Summary

The appellant, Fares, appealed against his conviction and sentence following a trial in the Supreme Court of Victoria. He was found guilty of two charges of murder, two charges of attempted murder, and one charge of intentionally causing serious injury. The appeal centred on two primary issues: the admissibility of tendency evidence during the trial and the appropriateness of the sentence imposed. The Court of Appeal considered whether the prosecution's use of character evidence invited the jury to engage in impermissible reasoning about the appellant's propensity to commit the crimes. Additionally, the appeal examined whether the trial judge erred in declining to direct the jury not to use the evidence as tendency evidence and if a substantial miscarriage of justice had occurred. The Court of Appeal also reviewed the sentence, questioning whether the trial judge failed to consider the appellant's youth and maturity as mitigating factors and if the judge had engaged in a two-stage sentencing process.

The court delved into the principles set forth in the Evidence Act 2008, specifically section 97, and examined the implications of the prosecution's reliance on character evidence in cross-examination and the final address. It referenced the High Court's decision in Awad v The Queen, which highlighted the risks of improper use of tendency evidence. The court further considered Baini v The Queen, which provided guidance on the proper use of character evidence in criminal trials. The appeal also referenced relevant sections of the Sentencing Act 1991 and the Crimes Act 1958 to assess the appropriateness of the sentence imposed. The court distinguished DPP v Pan, and considered Azzopardi v The Queen, Brown v The Queen, DPP v Dalgliesh, and R v Kilic to determine whether the trial judge had properly applied the standard sentencing provisions.

The Court of Appeal found that the prosecution's use of character evidence did not invite the jury to engage in impermissible tendency reasoning. The court held that the trial judge's decision to not direct the jury against using the evidence as tendency evidence did not result in a substantial miscarriage of justice. Regarding the sentence, the court determined that the trial judge had appropriately considered the appellant's age and maturity as mitigating factors and had not engaged in a two-stage sentencing process. The court found that the sentence, life imprisonment with a non-parole period of 27 years, was not manifestly excessive given the gravity of the offences. Consequently, the appeal was dismissed, and leave to appeal was refused.

Orders