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R v Abdul-Rasool

R v Abdul-Rasool

Case [2008] VSCA 13 12 February 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 362 of 2004

THE QUEEN
	v
RAJAA ABDUL-RASOOL

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JUDGES:	CHERNOV and REDLICH JJA and KING AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2006
REASONS FOR JUDGMENT:	12 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 13

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CONVICTION – Reckless conduct endangering life – s 22 Crimes Act 1958 – Sufficiency of the evidence – Whether contemplated future acts of accused could be considered in determining whether offence committed – Relevance of acts not performed to elements of offence – Risk of death must be appreciable – Necessary foresight of probability of risk – Relevance of psychological or emotional state of accused – Conviction quashed – Verdict of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr L Lasry QC Ms P Murphy (Sol)	Robert Stary and Associates

CHERNOV JA:

I have had the advantage of reading the draft reasons for judgment of Redlich JA in this matter and agree that, essentially for the reasons he gives, the impugned conviction should be quashed and a verdict of acquittal entered. More specifically, I accept that, in the end, the critical issue in the case is whether, on the evidence, a person was exposed, or may have been exposed, to an appreciable risk of death (as distinct from a mere possibility of that occurring) by reason of the whole of the offending conduct of the applicant, assessed in the context in which it occurred. Such endangerment is an essential element of the offence.[1] In my view, there was no exposure to such endangerment by reason of the applicant’s conduct. Importantly for present purposes, the question whether anyone was or may have been placed in danger of death by the applicant’s conduct is to be determined by reference to what she actually did on that occasion. The relevant conduct was the splashing of petrol by her on the floor and on the principal’s clothes. The Crown did not contend, nor could it have done so sensibly, that these acts endangered life. Nor did it claim that the presence of petrol vapour, by itself, produced such an endangerment. Rather, the Crown’s case was that the endangerment to life arose because the vapour could have been ignited by one or more of three potential sources, thereby producing a chain of events leading to the possible death of a relevant person. Two of such sources were external to the applicant – the heater and the computer. On the evidence, however, there was no realistic prospect of either of those sources igniting the vapour. The third potential source was the act of the applicant striking the lighter that was in her bag. But it is common ground that she made no attempt to use it. In the circumstances, and notwithstanding that the applicant was in a highly agitated state when she made the threats to burn the school, her conduct, without more, did…

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 R v Abdul-Rasool

Details

AGLC: R v Abdul-Rasool [2008] VSCA 13
Case: [2008] VSCA 13
Decision Date: 12 February 2008

CaseChat Overview and Summary

The defendant, Abdul-Rasool, was convicted for recklessly engaging in conduct that endangered life, under section 22 of the Crimes Act 1958. The appeal against the conviction was heard by the Court of Appeal, which reviewed whether the evidence was sufficient to support the conviction. The key legal issues revolved around whether the acts that the accused contemplated but did not perform could be considered in determining whether the offence was committed, and the relevance of the accused's psychological or emotional state to the elements of the offence.

The court examined the statutory requirements of the offence, which necessitate an appreciable risk of death and a necessary foresight of the probability of such risk. It was determined that the contemplated acts of the accused, which did not occur, were not relevant to the assessment of the offence. Additionally, the court found that the risk of death must be appreciable, and there must be a necessary foresight of the probability of that risk. The accused's psychological or emotional state was deemed irrelevant to the elements of the offence. Based on these findings, the court concluded that the evidence was insufficient to support the conviction.

Consequently, the conviction was quashed, and a verdict of acquittal was entered. The court held that the evidence did not establish the necessary foresight of the probability of an appreciable risk of death, and therefore the conviction could not be sustained. The court's reasoning centred on the statutory elements of the offence and the necessity for a clear and appreciable risk of death, which was not demonstrated by the evidence.

Orders