JUDGES:	MAXWELL P, PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2015
DATE OF JUDGMENT:	8 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 233
JUDGMENT APPEALED FROM:	DPP v Hajar (Unreported, Council Court of Victoria, Judge Cottrell, 29 September 2013 (conviction))

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CRIMINAL LAW – Appeal – Conviction – Rape, attempted rape, indecent assault – Character evidence – Applicant had no prior convictions – Defence counsel did not lead good character evidence – Whether rational forensic decision – Whether evidence might have affected outcome – Whether verdicts unsafe and unsatisfactory – Strong Crown case – Complainant’s evidence independently supported – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Rape, attempted rape, indecent assault – Sentence 5y, non-parole period 3y – Whether manifestly excessive – Violent offending – Breach of trust – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue O’Brien George Lawyers
For the Respondent	Mr P B Kidd SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P
PRIEST JA

KAYE JA:

The applicant was found guilty by a jury of one charge of indecent assault, one charge of rape, and one charge of attempted rape. After a plea in mitigation of sentence, he was sentenced to a total effective sentence of 5 years’ imprisonment, with a non-parole period of 3 years. He seeks leave to appeal against his conviction and sentence.

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

(1)a substantial miscarriage of justice has occurred because of a failure of the applicant’s counsel to adduce good character evidence in the trial of the applicant; and
(2)the verdict is unreasonable or cannot be supported having regard to the evidence.

Circumstances of offending

The applicant, who is aged 44 years, met his wife VF in Lebanon where they were married. The complainant, SM, is the sister of VF.

The applicant came to Australia on a spousal visa in late May 2012 together with his four children by a previous marriage. From the outset there were difficulties in the relationship between the applicant and VF. As a result, SM became involved as a mediator between them in order to try to resolve their difficulties. Due to the stress of his failing relationship with his wife, the applicant began drinking alcohol heavily. As a result, VF began leaving the family home for long periods of time during the day.

On 31 July 2012, VF left the family home in the morning, apparently as a result of an argument between herself and the applicant. The applicant commenced drinking alcohol. He telephoned SM between 11.00 am and 11.15 am, and requested that SM come to his home. The applicant was then upset and crying.

After receiving that telephone call, SM drove to the applicant’s home. When she arrived, she noticed that the applicant…

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 Hajar v The Queen

Details

AGLC: Hajar v The Queen [2015] VSCA 233
Case: [2015] VSCA 233
Decision Date: 8 September 2015

CaseChat Overview and Summary

The case of Hajar v The Queen involved an appeal by the applicant against his conviction for rape, attempted rape, and indecent assault, as well as the sentence imposed. The appeal was heard in the High Court of Australia. The applicant sought to challenge both the conviction and the sentence, arguing various grounds including the absence of good character evidence and the severity of the sentence.

The central legal issues before the court were whether the trial judge's failure to receive good character evidence constituted a rational forensic decision and whether this might have influenced the outcome of the trial. Additionally, the court examined whether the verdicts were unsafe and unsatisfactory given the strength of the prosecution's case and the independent support for the complainant's testimony. The court also assessed whether the sentence was manifestly excessive in light of the nature and circumstances of the offences.

The court found that the trial judge's decision not to lead good character evidence was a rational forensic choice and did not impact the safety and satisfaction of the verdicts. The prosecution's case was deemed strong, with the complainant's evidence corroborated by other evidence. Consequently, the court held that the verdicts were safe and satisfactory. Regarding the sentence, the court determined that it was not manifestly excessive, taking into account the violent nature of the offences, the breach of trust, and the need for general deterrence. As a result, the application for leave to appeal was refused.

Orders