Maruf Hussain v The Queen - [2013] ACTCA 42

MARUF HUSSAIN v THE QUEEN
[2013] ACTCA 42 (6 November 2013)

APPEAL AND NEW TRIAL – CRIMINAL LAW – appeal against conviction – directions to the jury – whether the trial judge erred in directing the jury to accept either the appellant’s evidence or that of the complainant – whether trial miscarried where trial judge referred to matter not in evidence – whether trial judge indicated to jury his opinion of appellant’s guilt – no requirement to accept evidence of the complainant on basis of rejection of evidence of accused – where directions to the jury on onus and standard of proof unexceptionable – portions of directions must be viewed in context of directions as a whole – where trial counsel did not seek redirections – failure to raise objection a reasonably reliable indicator of fairness: Richardson v R [2013] NSWCCA 218 – where no substantial miscarriage of justice: Supreme Court Act 1933 (ACT), s 37O(3)

APPEAL AND NEW TRIAL – CRIMINAL LAW – appeal against conviction – whether trial miscarried – whether miscarriage in trial judge posing questions to the accused – where no objection by trial counsel to questions – whether miscarriage in prosecution’s failure to give adequate notice of witness and nature of her evidence – where trial counsel raised no objection to witness – where nothing of substance that could have been put to witness is suggested

APPEAL AND NEW TRIAL – CRIMINAL LAW – appeal against sentence – manifest excess – act of indecency without consent – where maximum penalty 7 years’ imprisonment – where appellant without prior criminal history – where objective seriousness not at the bottom of the range

Supreme Court Act 1933 (ACT), s 37O(3)

Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Liberato v The Queen (1985) 159 CLR 507
R vRPAnderson (2001) 127 A Crim R 116
Richardson v R [2013] NSWCCA 218

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 36 - 2012
No. SCC of 188 of 2011

Judges: Penfold, Burns and Buchanan JJ
Court of Appeal of the Australian Capital Territory
Date: 6 November 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA 36 - 2012
  )          No. SCC 188 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MARUF HUSSAIN
Appellant

AND: THE QUEEN
Respondent

ORDER

Judges:  Penfold, Burns and Buchanan JJ
Date:  6 November 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeals against conviction and sentence are dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 36 - 2012
  )          No. SCC 188 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MARUF HUSSAIN
Appellant

AND: THE QUEEN
Respondent

Judges: Penfold, Burns and Buchanan JJ
Date: 6…

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 Maruf Hussain v The Queen

Details

AGLC: Maruf Hussain v The Queen [2013] ACTCA 42
Case: [2013] ACTCA 42
Decision Date: 6 November 2013

CaseChat Overview and Summary

Maruf Hussain appealed against his conviction and sentence for an act of indecency without consent. The appeal was heard by the Supreme Court of New South Wales, Court of Criminal Appeal.

The primary legal issues before the Court were whether the trial judge erred in directing the jury to accept either the appellant's evidence or that of the complainant, whether the trial miscarried due to the judge referring to matters not in evidence or indicating his opinion of the appellant's guilt, and whether the trial miscarried due to the judge posing questions to the accused or the prosecution failing to give adequate notice of a witness and the nature of her evidence. The Court also considered whether there was a manifest excess in the sentence imposed.

The Court reasoned that directions to the jury on onus and standard of proof were unexceptionable and that portions of directions must be viewed in the context of the directions as a whole. It held that there is no requirement to accept the evidence of a complainant on the basis of rejecting the evidence of the accused. The Court noted that the failure of trial counsel to raise objections to the judge's directions, the questions posed to the accused, or the prosecution's witness was a reasonably reliable indicator of the fairness of the trial. Applying section 37O(3) of the Supreme Court Act 1933 (ACT), the Court found no substantial miscarriage of justice. Regarding sentence, while the appellant had no prior criminal history, the objective seriousness of the offence was not at the bottom of the range, and the maximum penalty was seven years' imprisonment.

The appeals against conviction and sentence were dismissed.

Orders

Orders of the court

1. The appeals against conviction and sentence are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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