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Hussain v The King

Hussain v The King

Case [2024] VSCA 288 27 November 2024

Appeal

Breach of Trust

Circumstantial Evidence

Substantial Miscarriage of Justice

Prosecutor's Obligations

Incriminating Conduct Notice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0013

BASHIR HUSSAIN	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, McLEISH and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2024
DATE OF JUDGMENT:	27 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 288
JUDGMENT APPEALED FROM:	DPP v Hussain (County Court of Victoria, Judge Riddell, 10 May 2023)

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CRIMINAL LAW – Appeal – Conviction – Arson – Circumstantial case – Prosecutor asserted defence hypotheses had no evidentiary foundation and were speculative – Whether prosecutor reversed burden of proof, caused unfairness and distracted jury – No substantial miscarriage of justice – Whether trial judge erred in granting prosecutor leave to cross-examine prosecution witness on prior inconsistent statement – No error.

CRIMINAL LAW – Appeal – Conviction – Prosecutor invited jury to use evidence of applicant’s post-offence conduct in delaying calling 000 as implied admission that he lit fire – No incriminating conduct notice served – No mandatory direction on incriminating conduct given – Substantial miscarriage of justice – Appeal allowed.

Evidence Act 2008, s 38; Jury Directions Act 2015, ss 18, 19, 20, 21, 22.

Di Giorgio v The Queen [2016] VSCA 335; DPP v Lynn [2024] VSCA 62; Mocenigo v The Queen [2013] VSCA 231; Mulligan (a pseudonym) v The Queen [2017] VSCA 94; Paulson v The King [2024] VSCA 188; Pompei v The King [2023] VSCA 71; R v Baden-Clay (2016) 258 CLR 308.

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Counsel
Applicant:		Ms CA Boston SC with Ms S Jayasekara
Respondent:		Ms S Clancy
Solicitors
Applicant:	Dribbin & Brown Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA

MCLEISH JA
ORR JA:

The applicant was the proprietor of the Star Entertainment Centre, a pool hall with a bar, restaurant and shisha lounge. The Star Entertainment Centre was located on the second storey of a two-storey building in Dandenong South, of which the applicant was a tenant.
On the night of Sunday 31 March 2019, the Star Entertainment Centre was open for business. The applicant was at the premises with three of his employees. When the last of the three employees left the premises between midnight and 1:00 am, the applicant remained at the premises, playing snooker with friends.
At around 3:40 am, three construction workers who were on their way home from work pulled up at the building in which the Star Entertainment Centre was located, having seen that it was on fire. One estimated that he saw the fire from about a kilometre away. The other two said they saw the fire when they were at an intersection a short distance from the building.
At 3:41 am, one of the construction workers called 000 to report the fire. While the construction worker was talking to the 000 operator, the applicant emerged from the building. The construction workers called out to the applicant that the building was on fire.
At 3:44 am, the applicant called 000. He told…

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 Hussain v The King

Details

AGLC: Hussain v The King [2024] VSCA 288
Case: [2024] VSCA 288
Decision Date: 27 November 2024

CaseChat Overview and Summary

In the case of Hussain v The King, the appellant was convicted of arson and sought to appeal the decision. The appellant's primary contentions were that the prosecutor had reversed the burden of proof, caused unfairness, and distracted the jury by asserting that defence hypotheses had no evidentiary foundation and were speculative. The appellant also argued that the trial judge erred in granting the prosecutor leave to cross-examine a prosecution witness on a prior inconsistent statement.

The court considered whether the prosecutor's comments during the trial had reversed the burden of proof, caused unfairness, and distracted the jury, as well as whether the trial judge had erred in allowing the cross-examination on a prior inconsistent statement. The court found that the prosecutor's comments did not reverse the burden of proof or cause unfairness, and that the trial judge had not erred in granting leave for the cross-examination. However, the court found that the trial judge had failed to give a mandatory direction on incriminating conduct, which led to a substantial miscarriage of justice. The appeal was allowed in part, as the court found that the failure to give a mandatory direction on incriminating conduct resulted in a substantial miscarriage of justice.

The court's reasoning was based on the evidence presented during the trial and the relevant legislation, including the Evidence Act 2008 and the Jury Directions Act 2015. The court found that the trial judge had not erred in granting leave for the cross-examination on a prior inconsistent statement, but that the failure to give a mandatory direction on incriminating conduct was a significant error that resulted in a substantial miscarriage of justice. The court also considered relevant case law, including Di Giorgio v The Queen, DPP v Lynn, Mocenigo v The Queen, Mulligan v The Queen, Paulson v The King, and Pompei v The King, as well as R v Baden-Clay. The final orders of the court were that the appeal was allowed in part, and that the conviction was quashed and a retrial ordered.

Orders