Ibrahim v Police - [2013] SASCFC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
IBRAHIM v POLICE
[2013] SASCFC 70
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
31 July 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PROCEDURE - WITNESSES - CROSS-EXAMINATION
EVIDENCE - WITNESSES - CROSS-EXAMINATION
EVIDENCE - WITNESSES - CORROBORATION
Appeal against conviction. The defendant was found guilty after trial before a Magistrate on two counts of indecent assault against complainants CC and AF. The defendant’s appeal to a Judge of this Court was dismissed.
The defendant appeals on three grounds:
(1) The Magistrate erred in making an adverse credibility finding concerning the defendant’s evidence that he did not recall CC when there had been no cross-examination of the defendant to suggest that he was not genuine in his claimed lack of recollection of CC.
(2) The Magistrate erred in concluding that the defendant’s version of the apology to AF should be rejected.
(3) The Magistrate erred in ruling that evidence of each complainant was cross-admissible on the count involving the other complainant.
Held: Appeal allowed.
(1) There had been no challenge to the defendant’s claim that he had no recollection of CC. The Judge under appeal misunderstood the import of the initial questions put by the prosecutor in cross-examination of the defendant. The defendant was not challenged on a critical aspect of the case as to the genuineness of his evidence that he had no recollection of the consultation with CC. Compliance was required with the rule in Browne v Dunn if the appellant was to be so challenged (at [26]-[28]).
(2) The Magistrate failed to have regard to a proper understanding of witness B McG’s evidence regarding the defendant’s apology to AF. The Magistrate’s rejection of the defendant’s evidence cannot be sustained. The contention that the terms of the defendant’s apology was not material is rejected. The Judge on appeal did not address this issue in the course of his reasons (at [35]-[40]).
(3) Findings as to credit were critical in respect of both counts. As there was a joint trial, the flawed findings in respect of both CC and AF impacted adversely on the credit of the defendant when each separate count was considered (at [41]).
(4) Both convictions and sentence set aside. Proceedings remitted for retrial before a differently constituted Court (at [41]-[42], [45].
Criminal Law Consolidation Act 1935 (SA) s 56(1), referred to.
Browne v Dunn (1894) 6 R 67 (H.L.); Reid v Kerr (1974) 9 SASR 367; Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; Phillips v The Queen (2006) 225 CLR 303, considered.

IBRAHIM v POLICE
[2013] SASCFC 70
Full Court: Gray, Sulan and Blue JJ
THE COURT.

This is an appeal against conviction.
The defendant and appellant, Mohamed Zaki Ibrahim, was charged on Information that:
1. On the 31^st day of March 2010 at ELIZABETH…

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 Ibrahim v Police

Details

AGLC: Ibrahim v Police [2013] SASCFC 70
Case: [2013] SASCFC 70
Decision Date: 31 July 2013

CaseChat Overview and Summary

The appeal concerned convictions for indecent assault and related offences. The appellant, Ibrahim, appealed against these convictions to the Court of Appeal of the Supreme Court of Victoria.

The central legal issues before the Court of Appeal involved the proper application of principles relating to the admissibility of evidence of discreditable conduct and the question of cross-admissibility of evidence in criminal proceedings. The Court also considered the approach to be taken regarding corroboration and cross-examination of witnesses in such cases.

The Court of Appeal found that the approach identified by the High Court in previous decisions had not been sufficiently followed and applied by the trial court. While not detailing the specific errors, the Court indicated that issues concerning the admissibility of discreditable conduct evidence and the need for consideration of cross-admissibility would likely arise again. Consequently, the Court allowed the appeal, quashed the convictions and the sentence, and ordered a retrial before a differently constituted court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We consider that the approach identified by the High Court should have been carefully followed and applied. We do not propose to further consider this ground of appeal as there is to be a retrial. Presumably, on the retrial, issues concerning the admissibility of evidence of discreditable conduct will arise and the question of cross-admissibility will need to be considered.Conclusion The appeal is allowed. The convictions are set aside. The sentence imposed by the Magistrate is set aside. The proceedings are remitted for retrial before a differently constituted Court.

Ratio Decidendi

Legal Principle Established

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