Farha v The Queen - [2018] VSCA 310

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0264

NAZIH FARHA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, T FORREST and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 November 2018
DATE OF JUDGMENT:	21 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 310
JUDGMENT APPEALED FROM:	[2017] VCC 1386 (Judge Mason)

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CRIMINAL LAW – Application for leave to appeal – Conviction – Intentionally causing serious injury in circumstances of gross violence – Whether a substantial miscarriage of justice occurred – Whether trial judge erred in admitting DNA evidence – Whether trial judge erred in jury directions – Whether verdict unsafe and unsatisfactory – Timing of agreement, understanding or arrangement in commission of offence – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC with Ms C L Lynch	Ms M Walker
For the Crown	Mr R Maidment QC	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

T FORREST JA

ASHLEY JA:

Nazih Farha pleaded not guilty in the County Court to an indictment alleging one count of armed robbery and two counts of intentionally causing serious injury in circumstances of gross violence (‘ICSIGV’). After a lengthy trial, he was acquitted on the armed robbery charge but found guilty on the ICSIGV charges. He was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

Intentionally causing serious injury in circumstances of gross violence [Crimes Act 1958 s 15A] 20 years’ imprisonment 5 years’ imprisonment Base

Intentionally causing serious injury in circumstances of gross violence [Crimes Act 1958 s 15A] 20 years’ imprisonment 5 years’ imprisonment 2 years

Total Effective Sentence: 7 years’ imprisonment

Non-Parole Period: 5 years

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 829 days

Other relevant orders:
Pursuant to s 6A of the Sentencing Act 1991, sentenced as a Serious Violent Offender in relation to charge 3

Forfeiture Order

The applicant seeks leave to appeal against conviction on the following grounds:

Ground 1:A substantial miscarriage of justice has occurred, in circumstances where the contents of a note from a juror were not adequately revealed to the applicant’s counsel.
Ground 2:The learned trial judge erred in admitting the DNA evidence relating to the bottle cap found by police at 12 Basil Street, Fawkner.
Ground 3:The learned trial judge erred in directing the jury that the agreement, understanding or arrangement underpinning the commission of the offence of intentionally causing serious injury in circumstances of gross violence:
(a)need not have been formed far in advance of the commission of the offence; and
(b)may have been formed moments before the commission of the offence.

Ground 4:The guilty verdict on the charge of intentionally causing serious injury to Mazen Elmas in circumstances of gross violence is unsafe and unsatisfactory.

Background

On 15 May 2015, Tufan Kiroglu was shot in the leg. Upon his release from hospital in early June 2015, he moved into a house…

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 Farha v The Queen

Details

AGLC: Nazih Farha v The Queen [2018] VSCA 310
Case: [2018] VSCA 310
Decision Date: 21 November 2018

CaseChat Overview and Summary

The appellant, Mr Farha, has applied for leave to appeal against his conviction for intentionally causing serious injury in circumstances of gross violence. The appeal was heard in the High Court of Australia. Mr Farha was convicted for his role in a planned attack on a man, which resulted in the victim suffering serious injuries. The primary issues before the court were whether there had been a substantial miscarriage of justice, whether the trial judge had erred in admitting DNA evidence, whether the trial judge had erred in the directions given to the jury, and whether the verdict was unsafe and unsatisfactory.

The court examined the arguments regarding the timing of the agreement, understanding, or arrangement in the commission of the offence. It was argued that there was no evidence that Mr Farha had agreed, understood, or arranged to cause the victim’s injuries prior to the attack. The court considered whether the trial judge had erred in admitting DNA evidence that was found on the victim and whether the directions given to the jury were appropriate. The court also assessed whether the verdict was unsafe and unsatisfactory, considering all the evidence presented during the trial.

After thorough examination, the court found that there was no substantial miscarriage of justice and that the trial judge had not erred in admitting the DNA evidence or in the directions given to the jury. The court concluded that the verdict was safe and satisfactory, based on the evidence presented. Consequently, the application for leave to appeal was refused.

Orders