JUDGES:	MAXWELL ACJ, TATE and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 April 2014
DATE OF JUDGMENT:	16 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 117
JUDGMENT APPEALED FROM:	DPP v Ali (Unreported, County Court of Victoria, Judge Coish, 6 December 2012) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Separate consideration – Three accused, multiple charges – Jury question – Jury asked whether verdicts could be returned on some charges but not others, and for some defendants but not others – Whether judge’s response adequate – Whether necessary to repeat separate consideration direction – No error.

CRIMINAL LAW – Appeal – Conviction – Bias – Jury questions – Jury note expressed preference for judge to answer questions without accused present – Whether expression of preference created apprehension of bias – Whether further direction on impartiality required – Whether jury should have been discharged – No reasonable apprehension of bias.

CRIMINAL LAW – Appeal – Conviction – Kidnapping – Joint criminal enterprise – Agreement – Participation – Whether all three defendants participated in initial taking of victim – Whether case against third applicant depended solely on conduct subsequent to initial taking – Whether judge or defence counsel opened up impermissible path to conviction – Whether kidnapping continues after initial taking – No error of law by judge or counsel – No impermissible path to conviction – Case founded on subsequent participation would have been open – Davis v The Queen [2006] NSWCCA 392; R v Vu [2011] BCCA 112 followed – Verdict not unsafe and unsatisfactory – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicants, Haydar Ali and Billal Ali	Ms S Leighfield	Galbally Rolfe
For the Applicant, Badr Ali	Mr T Kassimatis	Galbally Rolfe
For the Respondent	Mr R A Elston QC	Mr Craig Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ
BEACH JA:

Introduction

The applicants, Haydar Ali, Billal Ali and Badr Ali, each pleaded guilty to three charges of common law assault and one charge of recklessly causing serious injury. Haydar Ali also pleaded guilty to a further two charges of robbery and one charge of common law assault related to the same set of offending. Additionally, Billal Ali pleaded guilty to a charge of possessing a drug of dependence.

The applicants were then tried before a County Court jury on a number of other charges arising from the same series of incidents. Each applicant was convicted of one charge of blackmail, one charge of kidnapping, two charges of robbery and one charge of making a threat to kill.

Coghlan JA refused each of the applicants leave to appeal against their convictions. Each applicant has renewed his application, pursuant to s 315(2) of the Criminal Procedure Act 2009 (Vic), seeking…

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 Haydar Ali v The Queen

Details

AGLC: Haydar Ali v The Queen [2014] VSCA 117
Case: [2014] VSCA 117
Decision Date: 16 June 2014

CaseChat Overview and Summary

Haydar Ali, along with two co-defendants, appealed against their convictions in the Supreme Court of Victoria, following a trial in which they were found guilty of various serious criminal charges, including kidnapping. The appeal focused on several issues related to the trial process, including the adequacy of judicial directions to the jury, the impartiality of the trial, and the sufficiency of the evidence to support the convictions. The central issue was whether the trial judge erred in the way he handled jury questions and directed the jury, which might have prejudiced the defendants' right to a fair trial.

The appeal raised questions about the trial judge's responses to jury inquiries, particularly whether the judge adequately reiterated the need for the jury to consider each defendant and each charge separately. The court considered whether the judge's response to a jury note expressing a preference for the judge to answer questions without the accused present, created a reasonable apprehension of bias. Additionally, the appeal challenged the legal sufficiency of the evidence, especially in relation to the kidnapping charges, questioning whether all defendants participated in the initial taking of the victim and whether the case against the third defendant was solely based on conduct subsequent to that initial act.

The Court of Appeal dismissed the appeal, finding no error in the judge's handling of the jury's questions or in the directions given to the jury. It was determined that the judge's responses were sufficient and did not create a reasonable apprehension of bias. The court held that the evidence was sufficient to support the convictions, and that the case against the third defendant was not solely based on his conduct after the initial taking but included his subsequent participation in the joint criminal enterprise. The court followed precedents that established that kidnapping can continue beyond the initial taking, and that the trial judge and defence counsel did not open up an impermissible path to conviction. Consequently, the appeal was dismissed, and the convictions were upheld.

Orders