Qadir (a pseudonym) v The King - [2023] VSCA 155

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.

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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)

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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.

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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…

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 Qadir (a pseudonym) v The King

Details

AGLC: Qadir (a pseudonym) v The King [2023] VSCA 155
Case: [2023] VSCA 155
Decision Date: 23 June 2023

CaseChat Overview and Summary

The case of Qadir (a pseudonym) v The King involved an appeal against both conviction and sentence. The appellant, Qadir, was convicted of multiple counts of incest and related offences. The dispute before the court centred on the admissibility of certain evidence provided by the complainant during the trial and the overall severity of the sentence imposed.

The primary legal issues addressed by the court were whether the complainant's inadmissible evidence, which was subsequently directed to be disregarded by the trial judge, led to a substantial miscarriage of justice, and whether the total effective sentence of 15 years and 8 months’ imprisonment was appropriate given the nature and circumstances of the offences.

In dismissing the appeal, the court held that despite the inadmissible evidence being presented during the evidence in chief, the direction given to the jury to focus on the admissible evidence during the relevant period mitigated any potential prejudice. The court reasoned that there was no substantial miscarriage of justice as the jury was properly guided on the evidence to consider. Regarding the sentence, the court determined that the total effective sentence fell within the appropriate range for the gravity of the offending, considering the principles and precedents set out in previous cases such as Maric v The Queen, Huynh v The Queen, and Gilbert v The Queen.

No leave to appeal was granted to the appellant.

Orders