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Najibi v R

Najibi v R

Case [2016] VSCA 177 28 July 2016

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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…

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 Najibi v R

Details

AGLC: Najibi v The Queen [2016] VSCA 177
Case: [2016] VSCA 177
Decision Date: 28 July 2016

CaseChat Overview and Summary

In the case of Najibi v R, the appellant was convicted of incitement to murder and appealed against his conviction, seeking leave to appeal. The appellant was acquitted on six charges and a directed verdict of not guilty was entered on another charge. The legal issues involved the consistency of the verdict with the acquittals, the scope of the incitement offence, and the proper conduct of the trial, including the discharge of a juror. The court examined the provisions of the Crimes Act 1958 and the Juries Act 2000, and referred to the cases of Sirat v The Queen, R v Boland, Wu v The Queen, and Zhu v The Queen.

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