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Farshchi v The King

Farshchi v The King

Case [2024] VSCA 235 14 October 2024

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0033

SEYYED ABDOLZADEH FARSHCHI	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 October 2024
DATE OF JUDGMENT:	14 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 235
JUDGMENT APPEALED FROM:	CDPP v Farshchi [2024] VCC 24 (Chief Judge Kidd)

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CRIMINAL LAW – Appeal – Conviction – Forced labour offences – Proof beyond reasonable doubt – Whether error to direct that a reasonable doubt is not an unrealistic possibility – Whether direction diminishes the criminal standard of proof – Whether direction inconsistent with Criminal Code (Cth) – Whether direction inconsistent with s 80 of the Constitution – Leave to appeal refused.

Jury Directions Act 2015 (Vic), ss 63 and 64; Constitution (Cth), ss 80 and 109; Criminal Code (Cth), s 13.2.

CRIMINAL LAW – Appeal – Sentence – Forced labour offences – Total effective sentence 3 years and 6 months’ imprisonment with 18 months non-parole – Whether too little weight given to family hardship – Whether sentence manifestly excessive – Leave to appeal refused.

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Counsel
Applicant:		Mr D Gurvich KC with Mr M Stanton SC and Mr P Smallwood
Respondent:		Ms R Sharp KC DPP (Cth) with Mr T Wood and Ms J Wang
Solicitors
Applicant:	Galbally & O’Bryan Lawyers
Respondent:	Commonwealth Director of Public Prosecutions

PRIEST JA:

Introduction

An indictment filed against the applicant in the County Court by the Commonwealth Director of Public Prosecutions charged the applicant with causing a person to remain in forced labour (charge 1), and conducting a business involving forced labour (charge 2). The charges were laid under ss 270.6A(1) and (2) of the Criminal Code (Cth) (‘Code’) respectively, which (so far as relevant) provide:
270.6A Forced labour offences
Causing a person to enter into or remain in forced labour
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes another person to enter into or remain in forced labour.
Penalty:
…
(b) in any other case—imprisonment for 9 years.
Conducting a business involving forced labour
(2) A person commits an offence if:
(a) the person conducts any business; and
(b) the business involves the forced labour of another person (or persons).
Penalty:
…
(b) in any other case—imprisonment for 9 years.
On 30 October 2023, a jury empanelled to try the applicant found him guilty of both charges.
Following a plea, on 30 January 2024 the trial judge sentenced the applicant to three years and six months’ imprisonment, with a non-parole period of 18 months, in accordance with the following table:

Charge Offence Sentence Cumulation

State sentences

1 Causing a person to remain in forced labour 3 years and 6 months Base

2 Conducting a business involving forced labour 3 years and 6 months —

Total effective sentence: 3 years and 6 months’ imprisonment

Other relevant orders: Reparation order in the amount $42,989.92

The applicant now seeks leave to appeal against the conviction and…

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 Farshchi v The King

Details

AGLC: Farshchi v The King [2024] VSCA 235
Case: [2024] VSCA 235
Decision Date: 14 October 2024

CaseChat Overview and Summary

The case of Farshchi v The King involves an appeal against conviction and sentence in relation to forced labour offences. The appellant, Farshchi, was convicted and sentenced by the County Court of Victoria. The primary legal issue before the Court of Appeal was whether the trial judge erred in providing directions to the jury about the standard of proof beyond reasonable doubt. Specifically, the trial judge directed the jury that a reasonable doubt was not an unrealistic possibility, and questioned whether this direction diminished the criminal standard of proof and was inconsistent with the Criminal Code and section 80 of the Constitution.

The Court of Appeal found that the direction given by the trial judge did not diminish the criminal standard of proof and did not contravene the relevant statutory provisions or the Constitution. The Court held that the direction was consistent with the legislative intent and did not shift the onus of proof onto the defendant. The Court further found that the sentence imposed by the County Court, which was 3 years and 6 months’ imprisonment with 18 months non-parole, was not manifestly excessive and that sufficient weight had been given to the family hardship. Accordingly, the appeal against conviction and sentence was dismissed.

The Court of Appeal refused leave to appeal to the High Court, which means that the decision of the Court of Appeal stands as the final determination of the case. This decision provides guidance on the proper directions to be given to juries in criminal cases and the appropriate considerations for sentencing in cases involving forced labour offences.

Orders