R v Aden & Toulle - [2002] VSCA 79

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.228 of 2000

THE QUEEN
THE QUEEN	v.
ABDULAZIZ AHMED ADEN
- and -	No.227 of 2000
THE QUEEN
THE QUEEN	v.
JEMAL TOULLE

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JUDGES:	PHILLIPS, BATT and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 April 2002
DATE OF JUDGMENT:	31 May 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 79

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CRIMINAL LAW – False imprisonment, rape and indecent assault – Crown case that offences immediately followed consensual sexual penetration for agreed price – Defence case that latter the only sexual activity – Inconsistencies in complainant’s various versions – Whether Longman warning required – Whether judge had to put a defence case on consent and mens rea – Whether acquittals on three counts inconsistent with guilty verdicts on nine – Whether latter not supportable by the evidence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle Q.C.	Ms K Robertson, Solicitor for Public Prosecutions
For the Respondents	Mr. J.M. Selimi	Starnet Legal Pty. Ltd.

PHILLIPS, J.A.:

I agree with Batt, J.A.

BATT, J.A.:

On 1 August 2000 in the County Court at Melbourne the applicants Abdulaziz Ahmed Aden, who is now 35 years of age and Jemal Toulle, who is now aged 48, each pleaded not guilty on arraignment to one count of false imprisonment (count 1), two counts of indecent assault (counts 2 and 10), eight counts of rape (counts 3 to 9 and 11) and one count of attempted rape (count 12). The offences were all alleged to have occurred on the one day, 20 April 1998, and upon the one victim, whom I shall simply call the complainant. The Crown case on each of the rape counts and the attempted rape count was that the applicant who was not the actual perpetrator acted in concert with the perpetrator. The trial proceeded and on 11 August 2000 the jury returned its verdict, finding each applicant guilty on counts 1 to 9 and not guilty on counts 10, 11 and 12. After hearing pleas in mitigation on 14 August, his Honour on 16 August sentenced each applicant to a total effective sentence of four and a half years’ imprisonment with a non-parole period of two years and nine months, and made a declaration of five days’ pre-sentence detention.

The applicants now seek leave to appeal against their convictions on the following grounds, as substituted in each case by orders made by the Registrar on 22 April 2002:

“1.The trial miscarried by reason of the failure of the learned trial judge to:-
(a)direct the jury that it would be dangerous and unsafe to convict each accused on the basis of the uncorroborated, contradictory, unsatisfactory and unreliable evidence of the complainant;
(b)give the jury any warning whatsoever in relation to the dangers of convicting each accused upon the complainant’s uncorroborated and unreliable evidence; and

(c)give the jury any warning whatsoever or any adequate warning as to how they should approach their task of assessing and evaluating the complainant’s evidence.

2.The trial miscarried by reason of…

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 Aden & Toulle

Details

AGLC: R v Aden & Toulle [2002] VSCA 79
Case: [2002] VSCA 79
Decision Date: 31 May 2002

CaseChat Overview and Summary

The case of R v Aden & Toulle involved two defendants, Aden and Toulle, who were charged with multiple offences including false imprisonment, rape, and indecent assault. The complainant alleged that the offences occurred after consensual sexual activity for an agreed price. The defendants contested the allegations, claiming that the only sexual activity involved was consensual and that the complainant's account was inconsistent. The case came before the court to determine the validity of the complainant's testimony, the applicability of the Longman warning, and whether the judge should have instructed the jury on the defence cases of consent and mens rea. Additionally, the court examined the consistency of the acquittals on three counts with the guilty verdicts on nine other counts, questioning whether the latter could be supported by the evidence presented.

The central legal issues addressed by the court included the necessity of a Longman warning in relation to the evidence provided by the complainant, the requirement for the judge to instruct the jury on the defence cases of consent and mens rea, and the consistency of the jury's verdicts. The court had to determine whether the judge's failure to provide a Longman warning or instruct on the defence cases constituted a miscarriage of justice. Furthermore, the court scrutinised whether the acquittals on three counts were reconcilable with the guilty verdicts on nine other counts, considering the sufficiency of the evidence to support the latter.

In its reasoning, the court found that the judge did not err in not providing a Longman warning as the complainant's evidence was not inherently unreliable. The court also held that the judge was not obligated to instruct the jury on the defence cases of consent and mens rea as there was no reasonable possibility that the jury might have acquitted the defendants based on those defences. Regarding the consistency of the verdicts, the court concluded that the acquittals on three counts did not necessarily conflict with the guilty verdicts on nine other counts, as the jury could have found varying degrees of credibility in the complainant's testimony. Ultimately, the court upheld the guilty verdicts on nine counts, finding them to be supported by the evidence.

The court made no alteration to the verdicts and maintained the convictions on the nine counts against Aden and Toulle. The acquittals on the three counts remained as decided by the jury, reflecting the court's confidence in the jury's ability to weigh the evidence and arrive at a reasoned decision. The reasoning and outcome underscore the court's role in ensuring that the jury's verdicts are both legally sound and supported by the evidence presented during the trial.

Orders