Qadir (a pseudonym) v The King

PSUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0134

AZIZ QADIR (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	PRIEST, WALKER and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2023
DATE OF JUDGMENT:	23 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 155
JUDGMENT APPEALED FROM:	DPP v Qadir(a pseudonym) (County Court of Victoria, Judge Murphy, 6 June 2022) (Conviction); [2022] VCC 1459 (Sentence)

---

CRIMINAL LAW – Appeal – Conviction – Incest and related offences – Complainant gave inadmissible evidence during evidence in chief – Direction given to jury to focus on evidence during relevant period – No substantial miscarriage of justice – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Total effective sentence of 15 years and 8 months’ imprisonment – Whether offending in the upper range of seriousness – Leave to appeal refused.

Criminal Procedure Act 2009, ss 276(b)–(c).

Maric v The Queen (1978) 52 ALJR 631, Huynh v The Queen [2020] VSCA 222, Gilbert v The Queen (2000) 201 CLR 414 applied.

---

Counsel
Applicant:		Mr S Kenny
Respondent:		Mr J Lewis with Mr N Hutton
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
WALKER JA
KAYE JA:

On 6 June 2022, following a trial in the County Court, the applicant was found guilty by a jury of three counts of incest, one count of attempted incest, seven counts of indecent act with a child under 16, two counts of common assault, and one count of causing injury intentionally. He was sentenced to a total effective sentence of imprisonment for 15 years and 8 months with a non-parole period of 11 years.[2] He now seeks leave to appeal against both his conviction and his sentence.
[2]DPP v Qadir (a pseudonym) [2022] VCC 1459, [113] (‘Sentencing Reasons’).
For the reasons that follow, leave to appeal against conviction and against sentence will be refused.

The background facts and the charges

The charges against the applicant involved offending against the first complainant and the second complainant, who were the applicant’s teenage stepdaughters. He had married their mother in around 1994, under Islamic law. In around 1997 the applicant leased a house in Preston and the first complainant, the second complainant and their mother moved into the house with him. All of the offending was said to have occurred at the family home in Preston.[3]
[3]Sentencing Reasons, [7].
The offending against the first complainant was incest (charges 3, 7 and 8), attempted incest (charge 4), indecent acts with a child under 16 (charges 1, 2, 5 and 6), causing injury intentionally (charge 9) and common assault (charges 12–13). These offences were said to have occurred between 1998 and 2003, when the first complainant was between 13 and 18 years of age. The offending against the second complainant was three charges of indecent acts with a child under 16 (charges 14–16) in 2003, when she was about 13 years of age.
Charge 1 (indecent act with a child under 16) occurred in mid-1998, when the first complainant was 13. The offending involved touching of the breast area over clothing following an argument between her and the applicant. Following that incident, the first complainant told her mother about it, who did not believe her. She also told the headmaster at her school, some of her school friends, and her doctor. The headmaster contacted the applicant, after which the applicant changed his behaviour towards the first complainant.[4]
[4]Sentencing Reasons, [12]–[14].
Charge 2 (indecent act with a child under 16) occurred in late 1998, while the complainants’ mother was in hospital giving birth. The applicant entered the room dressed, slipped into the first complainant’s bed, got on top of her and started to kiss her and touch her breasts. He was on top of her, rubbing up on her, and she believed she felt an erection.[5]
[5]Sentencing Reasons, [17].
Charge 3 (incest) also occurred in late 1998. Around the time of the first complainant’s 14^th birthday the applicant entered her bed under the covers, lifted her nightie, pulled down her underwear and proceeded to have intercourse with her. She was a virgin and said that it was painful. She did not say anything to the applicant, who withdrew before ejaculating. He pulled up his pants and left the room.[6]
[6]Sentencing Reasons, [17].
Charges 4 (attempted incest) and 5 (indecent act with a child under 16) arose from the same set of events, which occurred between November 1998 and November 1999, when the first complainant was around 14 years old. The applicant tackled her to the ground and sat her on his stomach. He moved up and tried to put his penis in her mouth. She had her mouth closed but he continued shoving his penis into her face until he ejaculated on her face. He then got up and left.[7]
[7]Sentencing Reasons, [23]–[24].
Charges 6 (indecent act with a child under 16) and 7 (incest) occurred between November 1998 and November 1999 again when the first complainant was around 14 years of age. The applicant entered the first complainant’s bedroom and started to kiss her and suggested sex. She said that she had had her period. The applicant said ‘That’s great this is probably the best time to have sex’, because he could ejaculate inside her and she would not get pregnant. He then went away, got a towel, came back and took her clothes off and told her to lie on the bed. He then proceeded to have intercourse with her and to ejaculate inside her.[8]
[8]Sentencing Reasons, [21].
Charge 8 occurred between November 1998 and November 1999. The first complainant was looking after her young brother while her mother was away, and was sleeping with him on her mother’s bed. The applicant came into the room, naked from the waist down, got on top of the first complainant, started to initiate sex, took off her pants and commenced intercourse with her. He then turned her over and entered her from behind. He withdrew before ejaculating over her anus.[9]
[9]Sentencing Reasons, [26].
Charge 9 (causing injury intentionally) occurred between November 2001 and November 2002. The first complainant gave evidence that the relationship between her and the applicant had become strained, and she was arguing back at him. On the occasion in question they were in the living room when the applicant said something about her weight that he purported to be a joke. She responded and said that he was weird. She got up to walk away and the applicant got up behind her, pulled her hair then came around in front of her and punched her in the eye, slapped her around the face and punched her around the mouth. The first complainant’s mother took photos of the results of this assault, namely a swollen eye and a fat lip. The first complainant’s brother gave evidence supporting the account.[10]
[10]Sentencing Reasons, [27]–[28].
Charges 12 and 13 (common assault) occurred between November 2001 and November 2003. Both incidents of offending involved strangulation of the first complainant during arguments.
In the first such incident, charge 12, the first complainant had entered the applicant’s room in order to retrieve an item. He came into the room and asked her what she was doing. She explained; he told her to leave but she refused and said she wanted to retrieve the item. The applicant then pulled her by the hair and dragged her out into the living room. She resisted, and he tackled her to the ground, got on top of her, pinned her arms down and started to strangle her with both hands. She felt that she was about to pass out. He would then let her go before resuming. He did this two or three times.[11]
[11]Sentencing Reasons, [29].
Charge 13 relates to an event occurring after the applicant had placed a lock on the bathroom door in order to control when the children showered. The first complainant was trying to unscrew the hinges of the door. The applicant dragged her by the hair and pulled her away from the door. She struggled and he put his arm around her neck in a headlock. He started to press really hard, such that she thought she was going to faint, and when she stopped resisting he let go. The first complainant’s brother gave evidence corresponding to her account.[12]
[12]Sentencing Reasons, [30].
In addition, there were various uncharged acts of physical and sexual violence against the first complainant throughout the offending period.
Charges 14, 15 and 16 (indecent act with a child under 16) involved offending against the second complainant between November and December 2022, when her mother, her brother and the first complainant were away overseas. The offending involved the applicant sexually touching the second complainant in various ways. Charge 14 occurred at night, when the applicant had directed the second complainant to sleep in her mother’s bed. When she was in bed, she woke up and found the applicant in bed with her. He was holding her from behind, with his hands all over her. He was touching her breasts and her vagina area. This continued for what seemed longer than five minutes. She shifted position and the applicant left. She did not say anything to him because she feared that, if she had done so, he would have been violent.[13]
[13]Sentencing Reasons, [33].
Charge 15 occurred on an occasion when the second complainant thought that she was in trouble with the applicant. He picked her up while she was crying and screaming. She was resisting and kicked the bathroom door, which hit her younger brother in the face. The applicant threw her onto her mother’s bed and then put his hands all over her chest, breasts, and vagina area. She was screaming and crying. The applicant was very rough, particularly with her vagina. The event continued for about 15 minutes.[14]
[14]Sentencing Reasons, [35]–[36].
Charge 16 occurred on an occasion when the applicant told the second complainant to go into her room and take her clothes off and wait for him. She went into her room but did not take her clothes off. A few minutes later the applicant asked why she had not done so. He then pinched her neck and got on the bed and told her to give him a massage. She was only wearing pants and was sitting over the applicant’s stomach. He positioned her onto his groin and grabbed her hands and moved them over his nipples and chest and made her rub him. She could feel his erect penis.[15]
[15]Sentencing Reasons, [37].
The second complainant told her mother about the applicant’s conduct over the phone to Egypt at the time of the conduct. Soon afterwards the mother returned to Australia and she and the children moved out of the Preston home.
In 2012, when she was 22, the second complainant published a blog post about the applicant’s abuse of her.
In May 2018, the first complainant spoke to the police about the applicant’s conduct. The second complainant did so shortly afterwards. Their mother made a statement in January 2019. The applicant was formally interviewed by the police on 4 October 2019. He denied the offending.[16]
[16]Sentencing Reasons, [40].
The applicant was charged in October 2019 and granted bail. He was committed for trial following a committal and a trial was held in May 2022.

The appeal against conviction

The single ground of appeal against conviction is that the trial judge erred by refusing to discharge the jury after inadmissible evidence was given by the first complainant in the course of her evidence in chief.
At the outset we observe that, as Gibbs ACJ explained in Maric v The Queen, ‘when a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction’.[17] The refusal to discharge the jury, by itself, does not give rise to a ground of appeal.[18] Rather, in such an appeal the usual principles applicable to an appeal against conviction apply, thus the fundamental question is whether there has been a substantial miscarriage of justice.[19] In oral argument the applicant’s counsel accepted as much and made submissions on that basis. We will thus address the appeal against conviction on that basis.
[17](1978) 52 ALJR 631, 634 (Gibbs ACJ, Mason J agreeing at 636, Jacobs J agreeing at 636, Aickin J agreeing at 637).
[18]Dragojlovic v The Queen [2013] VSCA 151, [169] (Redlich and Weinberg JJA and Bell AJA).
[19]Criminal Procedure Act 2009, ss 276(b)–(c).
The evidence in question relied upon by the applicant was given in the context of her evidence that, following the first alleged offending, which involved violence against her, the applicant had changed his behaviour and befriended her. The evidence, with some context, was as follows (the particular parts of the evidence on which the application for leave to appeal is based — the ‘impugned evidence’ — are in bold):
PROSECUTION COUNSEL: And what did [the applicant] do after this [ie after he befriended the first complainant]. Did he address your behavioural problems?---Um - he became much nicer. He did start to be friendly. You know, he started to act like a father figure. He - you know, he'd give me lollies and he started helping me with my homework which is not - I was not used to that. He was - before that he was quite authoritative. It was his way or the highway. There was no talking. It was just do this and that's it. Do it otherwise there'd be, you know, a punishment or you'd get hit. I was hit a fair bit. I was bashed a fair bit - um - and so, yeah, he started to behave very differently. He was much nicer.
PROSECUTION COUNSEL: Yes. You were talking about his verbal expression. How about with the physical expressions. That changed?---Yeah. Yeah. I was bashed a lot. I was beaten a lot, and that - - -
PROSECUTION COUNSEL: No, but did it change from a - - -?---And that started from the age of about 11 and it was over anything. So, it was basically like if my behaviour was not exactly what he expected, there would be a beating. If something wasn’t clean the way that it needed to be, there would be a verbal abuse and - - -
PROSECUTION COUNSEL: But [first complainant] … hold on. Hold on there [first complainant].
HIS HONOUR: No. Hold on. Now, we're only interested in what of your evidence after you - you said he befriended you.
The applicant submitted that this evidence was not given in direct response to a question by the prosecutor. He further submitted that the prosecution case, as set out in the opening and the tendency notices that had been served, did not allege any physical or sexual assault by the applicant prior to the first complainant reaching the age of 13.
Very shortly after this evidence was given, the applicant applied for a discharge of the jury on the basis that the evidence given was not opened on, was not the subject of the tendency notice, constituted evidence of bad character and involved a significant potential for prejudice to the applicant that could not be cured by appropriate directions from the judge. The applicant also submitted that the trial was in an early stage, so the inconvenience and cost of starting again was low. The trial judge ruled against that application, as follows:
Well, I’m against the application to discharge the jury at this point. Boland does talk about a high-degree of need, but it is in a sense a moving feast as to where the state of the evidence and what whether or not any matter can be cured by way of a direction. We’ve got to work on the basis that the juries will follow the directions. I indicated to them that the focus of the examination-in-chief was and tried to get Ms Duckett to move to that to the charged evidence. There is a tendency notice that does refer to acts of violence, which are referred to in the relevant charges which are to be cross admissible, and it was in the Crown opening.
So the whole purpose of an opening is to put a defence on notice of what it, even if it wasn’t admitted, even if it wasn’t raised specifically to the jury in her opening, it still — it hasn’t taken the accused by surprise cause he was notice of it in the statement and I’m satisfied that any prejudicial weight, prejudicial content can be addressed by an appropriate direction and I’ll just give the direction — the jury a short direction now to say that the complainant gave evidence of some events when she was aged 11. That's irrelevant. Not to concern them. The case focuses on events after she turned 13 as set out in the indictment and I’ll give them further directions about how to use all the evidence in due course.
Immediately following the ruling refusing to the application to discharge the jury, the trial judge directed the jury in the following terms:
Members of the jury, the witness gave some evidence about some events that occurred when she was or after she turned 11. You've got the indictment. The case is about 16 incidents over the time period that starts in 2008^[[20]] when she was aged 13, charge one. That's what you've got to focus on, not what the witnesses might talk about at some earlier time period. It's the focus of each charge that you've got to focus on. Whether the prosecution prove the charge beyond reasonable doubt and know it, nothing else. I'll give you further directions about that in due course.
[20]The transcript records 2008, however it is more likely that the judge said 1998, since that was the year the relevant time period commenced (in which charge one was said to have occurred) and the year in which the second complainant was aged 13.
In his written submissions the applicant submitted that the trial judge erred in three ways:
(a)first, the ruling did not refer to the fact that the evidence was given very early in the trial;
(b)secondly, the judge ‘apparently placed some weight upon the fact that the impugned evidence was referred to in the depositions’, notwithstanding that it was not referred to in the Summary of Prosecution Opening, the tendency notices or the prosecutor’s opening address; and
(c)thirdly, the judge ruled that ‘the prejudicial weight, prejudicial content’ could be addressed by an appropriate direction, without any proper analysis of the nature and degree of the prejudice.
However, in oral argument the applicant submitted that the impugned evidence was inadmissible, that the nature of the evidence was such that it caused a substantial miscarriage of justice, and that its prejudicial effect was not cured by the direction given by the trial judge, or by further remarks about the evidence that the judge made in his charge to the jury.
We note that the respondent submitted that the impugned evidence was not inadmissible. We do not consider it necessary to determine whether that submission is correct. Even assuming that the impugned evidence was inadmissible, there was no substantial miscarriage of justice, for the following reasons.
First, the evidence was general in nature — the first complainant did not specify any particular events or occasions on which the applicant had been violent to her. It was also very brief evidence, encompassing only a few sentences. The prosecutor and the judge then intervened to indicate that the Court was only interested in what had occurred after the first charge.
In that regard, we do not accept the applicant’s submission that the interjection by the judge and counsel at the time the impugned evidence was given would have had the effect of highlighting the evidence in such a way as to undermine or negate the effect of the judge’s directions. To the contrary, those interjections were designed to, and did, ensure that the first complainant did not go on to give further potentially inadmissible evidence.

Secondly, as the respondent submitted, the effect of the first complainant’s brief and generalized assertion of violence from the age of 11 would have been relatively limited when considered in context and when compared with the specific and admissible evidence of violence against the first complainant after November 1998 that was adduced in the trial. This included specific evidence about the applicant pulling the first complainant’s hair, slapping her face, punching her, strangling her, sitting on her chest and pressing his arm around her neck.[21] Furthermore, any effect of the impugned evidence would have been outweighed by other evidence that supported the first complainant’s account, namely the evidence given by her brother and by two of her childhood friends, which supported her evidence of violence, and the photographs, taken by her mother, of some of the first complainant’s injuries.[22]
[21]Sentencing Reasons, [27], [29].
[22]Sentencing Reasons, [28], [30].
Thirdly, and importantly, shortly after the impugned evidence had been given, the judge gave the jury a direction about the evidence, set out above. He instructed them that they were to focus on the correct time period, not on events that occurred in some earlier time period. There is no reason to think that the jury would not have understood that direction, or would have failed to follow it. As Maxwell P and Priest JA observed in Huynh v The Queen, the system of criminal trial by jury must proceed on the supposition that jurors will follow the directions that are given to them.[23] Their Honours quoted the following statement by Gleeson CJ in Gilbert v The Queen:
The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge’s directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one — accused, trial judge or member of the public — could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.[24]
[23][2020] VSCA 222, [44] (Priest JA, Maxwell P agreeing at [1]).
[24](2000) 201 CLR 414, 425 [31].
This is not a case where there was any deficiency in the direction that was given. Nor was it a case where the direction was confusing or difficult to comprehend. Rather, it is a case where the jury was directed to disregard a small part of the first complainant’s evidence. It was not a complex direction and would not have been difficult for the jury to follow. It was given in a timely fashion. The consistent experience of the courts is that juries do ordinarily heed the trial judge’s directions, and we see no reason to think that the jury failed to do so in the present case.
It is also necessary to refer to the manner in which the trial judge charged the jury on this issue. In that regard, the judge spent some time explaining to the jury the manner in which they could use tendency evidence concerning the applicant’s tendency to use physical violence against the first complainant, based on her evidence and that of her brother. He then went on to deal with evidence about events that occurred before the first complainant was 13. In relation to that evidence, the judge said this to the jury:
That is sort of the cut-off date for what we are dealing with here. We are not dealing with any events or any accusations against the accused man before the complainant turned 13 and before they got to Preston, and that is very important.
In that context the judge also dealt with evidence given by a girl who had been at school with the first complainant, and whose evidence was that she thought that the first complainant had told her that the applicant had touched and hit the first complainant when they lived in Carlton (which was before the relevant time period in issue). There is no proposed ground of appeal directed to that evidence, or the manner in which the judge dealt with it. But in his charge, in the course of dealing with that evidence, the judge again reinforced the limitations on how evidence concerning events outside the relevant time period could be used:
In particular, you have go to not to reason, not to use that evidence to reason that because the accused man has behaved in a certain manner on a particular occasion, say when he was in Carlton in a period outside this period from November 1998 to subsequently, you must not use that evidence to reason that he is the type of person who would commit the offences for which he is charged, the list of offences, in particular, both in relation to violence and in relation to sexual offending.
…
You cannot punish him for that other conduct that has attributed to him by the other witnesses, indeed by [the first and second complainants] before, other than the evidence that I have referred that occurred in Preston.
In our opinion the admission of the impugned evidence, accompanied as it was by the specific and immediate direction given by the trial judge, and by the thorough and careful directions to the jury in his charge, did not result in a substantial miscarriage of justice.
Leave to appeal against conviction will therefore be refused.

The appeal against sentence

The sole proposed ground of the applicant’s application for leave to appeal against sentence is that the trial judge erred in his sentencing finding that the offending was ‘in the upper range of seriousness’. At the hearing of the application, counsel for the applicant expressly eschewed reliance on manifest excess, and relied only on specific error.
This ground need only be stated, and the nature of the offences of which the applicant was convicted recalled, for it to be seen to be without merit.
The applicant’s submission in relation to this ground was that, although the offending was serious, it was not in the ‘upper range of seriousness’. He submitted as follows:
[T]he features of the offending are common to many incest cases and are not such as to place it in the high or upper range of seriousness. It is therefore submitted that the Learned Trial Judge’s characterisation of the seriousness of the offending in combination with the imposition of a very lengthy term of imprisonment reflects an error of principle.
In oral argument, the applicant relied upon certain remarks by Priest JA in Reid (a pseudonym) v The Queen,[25] in which his Honour set out various matters that have led to the imposition of a sentence ‘at the top of the range’ or of a ‘high order’. Counsel accepted that some of the matters identified by Priest JA were present in the instant case, but submitted that some of the matters were not present. He further submitted that, when regard is had to the sentence imposed on certain other cases involving incest, this case ought not be regarded as being in the ‘upper level of seriousness’.
[25](2014) 42 VR 295, 312 [88] (‘Reid’).
We have no hesitation in refusing leave to appeal on this proposed ground. First, there is no basis to conclude that the ‘features of the offending are common to many incest cases’. Secondly, even if that be so, that does not mean that the offending was not in the upper range of seriousness. In our view, it plainly was. In particular:
(a)the offending involved 14 serious offences involving two young girls;
(b)the applicant was in a position of trust with those two girls, being their stepfather — as the judge correctly observed, sexual offending by parents against children is inherently serious, and the applicant’s conduct involved a gross breach of trust and of parental obligations;[26]
(c)the offending involved particularly serious offences against the first complainant, including rape by penile penetration without a condom, as well as the grossly degrading conduct of attempting to force his penis into her mouth and then ejaculating on her face;
(d)the offending involved associated violence and the use of force, and took place against a background of family violence;
(e)the offending took place over a number of years;
(f)the applicant continued, and indeed escalated, his offending after being told that his behaviour towards the first complainant was unacceptable;[27]
(g)the actual charged offences were committed in the context of other reprehensible, but uncharged, conduct that increased the applicant’s culpability — that is, these were not isolated incidents;
(h)the offending necessarily had a very significant impact on both the complainants, as they explained in the victim impact statements — it was the kind of offending which can cause significant and permanent harm to the victims.
[26]Sentencing Reasons, [52].
[27]Sentencing Reasons, [54].
To the extent it is relevant to our assessment of the seriousness of the offending in this case, the judgment of Priest JA in Reid serves to confirm, rather than to deny, that the offending in this case involved a number of aggravating matters that would warrant a description of the offending as in the upper level of seriousness and therefore deserving of a stern sentence.
In our opinion the trial judge was entirely correct to describe this offending as in the upper range of seriousness. Leave to appeal on this proposed ground will be refused.
---

[2023] VSCA 155

23 June 2023