R v Ahmet - [2009] VSCA 86

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 912 of 2007
No 945 of 2007

THE QUEEN
	v
BARIYOW AHMET

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JUDGES:	BUCHANAN, VINCENT and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2009
DATE OF ORDERS	23 April 2009
DATE OF PUBLICATION OF REASONS:	1 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 86

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Criminal law – Conviction – Applicant found guilty of one count of unlawful imprisonment, one count of assault, one count of intentionally causing injury and one count of rape.
Complaint – Whether reply to a question of a suggestive character – Whether complainant’s evidence should have been excluded for being ‘contrived or induced’ – Reliance on R v Freeman [1980] VR 1.
Majority verdict - Whether trial judge erred in not seeking submissions of counsel before instructing jury that it could deliver majority verdict - Whether applicant deprived of his right to unanimous verdict – Application refused.

Criminal law – Sentence – Director’s appeal – Whether individual sentences, total effective sentence of 5 years and six months’ imprisonment with non-parole period of 2 years and 9 months’ imprisonment manifestly inadequate – Whether judge made insupportable finding of fact – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quinn	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P F Tehan QC with Mr S K E Anger	Starnet Legal Pty Ltd

BUCHANAN JA:

I have had the advantage of reading in draft the reasons prepared by Ashley JA of the orders made by the Court on 23 April 2009. I agree in those reasons.

VINCENT JA:

I also agreed in that the application for leave to appeal against conviction by Bariyow Ahmet should be refused, and the appeal by the Director of Public Prosecutions against sentence dismissed for the reasons given by Ashley JA.

ASHLEY JA:

On 23 April 2009, after hearing oral argument, the Court made orders, for reasons later to be published, refusing Bariyow Ahmet’s application for leave to appeal against conviction, and dismissing an appeal by the Director of Public Prosecutions against sentence. The following are my reasons for joining in those orders.

On 18 September 2007 a jury in the County Court found Ahmet guilty of the following offences:

· Unlawful imprisonment (Count 1).[1]
[1]Contrary to common law, maximum penalty 10 years’ imprisonment.

· Assault (Count 2).[2]
[2]Contrary to common law, maximum penalty 5 years’ imprisonment.

· Intentionally causing injury (Count 3).[3]

· Rape (Count 5).[4]

[3]Contrary to s 18, Crimes Act 1958 (Vic), maximum penalty 10 years’ imprisonment.

[4]Contrary to s 38(1), Crimes Act 1958 (Vic), maximum penalty 25 years’ imprisonment.

All of the offences of which Ahmet (conveniently, ‘the applicant’) was found guilty were committed on 12 October 2004. The victim was KE.

On 20 November 2007 the applicant was sentenced as follows:

· Count 1 - 12 months’ imprisonment

· Count 2 - 6 months’ imprisonment

· Count 3 - 6 months’ imprisonment

· Count 5 - 5 years’ imprisonment

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 Ahmet

Details

AGLC: R v Ahmet; Director of Public Prosecutions v Ahmet [2009] VSCA 86
Case: [2009] VSCA 86
Decision Date: 1 May 2009

CaseChat Overview and Summary

The applicant, Ahmet, was convicted by a jury on one count of unlawful imprisonment, one count of assault, one count of intentionally causing injury, and one count of rape. The applicant appealed against his conviction and sentence on multiple grounds. The primary issue before the court was whether the trial judge should have excluded the complainant’s evidence as being ‘contrived or induced’. The applicant argued that the trial judge should have considered the complainant's evidence as such based on a suggestive reply to a question. The court considered this in light of the decision in R v Freeman, where a similar issue arose. The court concluded that the evidence was not contrived or induced and upheld the conviction.

The applicant also argued that the trial judge should have sought submissions from counsel before instructing the jury on the possibility of a majority verdict. The applicant claimed this deprived him of his right to a unanimous verdict. The court examined the circumstances in which the trial judge instructed the jury and found no error. The court held that there was no procedural misstep that would necessitate the exclusion of the verdicts. The appeal against the conviction was therefore dismissed. Additionally, the Director of Public Prosecutions appealed the sentence, arguing it was manifestly inadequate. The court found no error in the judge's assessment and dismissed the appeal against the sentence.

Orders