SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0217
| WAHID NAJIBI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY, WEINBERG and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 April 2016 |
| DATE OF JUDGMENT: | 28 July 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 177 |
| JUDGMENT APPEALED FROM: | R v Najibi [2015] VSC 260 (Emerton J) (date of conviction 2 April 2015) |
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CRIMINAL LAW – Application for leave to appeal conviction – Conviction for incitement to murder – Acquittal on six charges – Directed verdict of not guilty on one charge – Whether verdict inconsistent with acquittals – Leave refused.
CRIMINAL LAW – Application for leave to appeal conviction – Whether incitement to incite commission of offence would fall outside offence of incitement – Whether possibly convicted on that basis – Conduct of trial – Leave granted – Appeal dismissed – Crimes Act 1958 s 321G(1) – Sirat v The Queen (1986) 83 Cr App R 41 discussed.
CRIMINAL LAW – Application for leave to appeal conviction – Juror discharged as being incapable of continuing to act as juror – Whether wrongfully discharged – Whether discharge created fundamental defect in constitution of the jury – Construction of s 43, Juries Act 2000 – Value judgment whether circumstances fall within any of paragraphs (a) to (d) of s 43 – Whether judge bound to discharge juror where s 43 circumstances present – Whether ‘high degree of need’ test imported into s 43 – Construction of s 44, Juries Act – Sections 43 and 44 not exhaustive of power to discharge jury – Open to trial judge to discharge juror – Leave granted – Appeal dismissed – Juries Act 2000 ss 43 and 44 – R v Boland [1974] VR 849 – Wu v The Queen (1999) 199 CLR 99 – Zhu v The Queen (2013) 38 VR 77 discussed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC with Ms C A Boston | Melasecca, Kelly & Zayler |
| For the Crown | Mr D A Trapnell QC | Mr J Cain, Solicitor for Public Prosecutions |
ASHLEY JA
WEINBERG JA
McLEISH JA:
On 2 April 2015, a jury in the Supreme Court found Wahid Najibi guilty of incitement to murder. It acquitted him of another six charges on an eight charge indictment. On the remaining charge, the jury returned a directed verdict of not guilty.
On 10 June 2015, Najibi was sentenced to eight years’ imprisonment on the incitement charge. The judge fixed a non-parole period of four years and nine months’ imprisonment.
Grounds of appeal
Najibi now seeks leave to appeal against his conviction; and, if leave is granted, that the appeal be allowed and his conviction quashed. He relies upon these grounds:
Ground 1
The guilty verdict on the charge of incitement to murder is inconsistent with the acquittals on the remaining charges.
Ground 2
A substantial miscarriage of justice has occurred by reason of the possibility that the jury convicted the applicant of an offence not specified…
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- AGLC
- Najibi v The Queen [2016] VSCA 177
- Case
- [2016] VSCA 177
- Decision Date
CaseChat Overview and Summary
The court held that the conviction for incitement to murder was not inconsistent with the acquittals on other charges, and the scope of incitement under the Crimes Act 1958 was not limited to direct incitement but could include incitement to incite. The court also found that the discharge of a juror did not create a fundamental defect in the constitution of the jury, and the trial judge had discretion to discharge a juror if circumstances warranted it, without being bound by the specific criteria in s 43 of the Juries Act 2000. The court concluded that the appeal was without merit and dismissed it.
Consequently, the court refused leave to appeal the conviction for incitement to murder, as it was consistent with the acquittals on other charges. The court granted leave to appeal on the scope of the incitement offence and the discharge of a juror, but ultimately dismissed the appeal as it found no error in the trial judge's conduct. The appellant's conviction for incitement to murder was therefore upheld.
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
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Ratio Decidendi
Legal Principle Established
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