R v Al Qassim - [2009] VSCA 192

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 588 of 2009

THE QUEEN
	v
AHMAD AL QASSIM

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JUDGES:	BUCHANAN and DODDS-STREETON JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 August 2009
DATE OF JUDGMENT:	28 August 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 192
JUDGMENT APPEALED FROM:	R v Al Qassim (Unreported, County Court of Victoria, 3 April 2009, Judge Jenkins)

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CRIMINAL LAW – Applicant convicted of sexual penetration of a child under the age of 16 years as aider and abetter – Joint trials of co-accused – Co-accused’s lies in police interview said to show consciousness of guilt regarding illegal agreement – No direction that co-accused’s record of interview not admissible evidence in applicant’s trial – Whether conviction vitiated – Whether directions on presence in the context of aiding and abetting erroneous or insufficiently related to facts, where applicant claimed he was considerable distance from the complainant – Whether verdicts inconsistent – Whether verdicts unsafe and unsatisfactory.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	Randles Cooper & Co

BUCHANAN JA:

I have had the advantage of reading draft reasons prepared by Dodds-Streeton JA. I agree with her Honour, for the reasons she has stated, that the failure of the trial judge to direct the jury to disregard the record of interview of Al Assadi in considering the case against the applicant caused the trial to miscarry. The convictions should be set aside and the applicant retried.

I consider that the trial judge’s directions to the jury as to the use they could make of the presence of the applicant in considering the question of his liability as an aider and abettor may have confused, rather than enlightened, the jury.

In her initial directions on aiding and abetting, her Honour said:

A person can aid and abet an offence by words, action, or both. However in most cases he needs to do something more than simply being present when the offence is committed. He needs to say or do something that assists or encourages the principal offender to commit the crime. In some cases, it is possible for the mere fact of the accused’s presence at the commission of the offence to constitute encouragement of the principal offender.

Her Honour did not at any point state that mere presence at the scene of a crime was insufficient to constitute aiding and abetting. Instead, the trial judge said that in some cases, which she did not identify, mere presence could constitute encouragement. It is hardly surprising that the jury sought an explanation of the concept of intentionally assisting or encouraging the commission of the principal offence. In the course of her response to this question, her Honour repeated the directions I have quoted.

In my opinion, in the circumstances of this case, the trial judge should have said that mere presence at the scene of the commission 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 Al Qassim

Details

AGLC: R v Al Qassim [2009] VSCA 192
Case: [2009] VSCA 192
Decision Date: 28 August 2009

CaseChat Overview and Summary

In the case of R v Al Qassim, the applicant was convicted of aiding and abetting sexual penetration of a child under 16 years of age. The applicant and two co-accused were jointly tried. The applicant's conviction was challenged on several grounds, including the admission of evidence from the co-accused's police interview, the adequacy of the trial judge's directions regarding the presence requirement in aiding and abetting cases, and the consistency and safety of the verdicts.

The primary legal issues before the court were whether the admission of the co-accused's police interview, which contained statements indicating consciousness of guilt, prejudiced the applicant's right to a fair trial, and whether the trial judge's directions on the presence element in aiding and abetting were erroneous or insufficiently related to the facts. The court also considered whether the verdicts were inconsistent and whether they were unsafe and unsatisfactory.

The court found that the admission of the co-accused's police interview did not prejudice the applicant's right to a fair trial, as the evidence was relevant and probative. Regarding the directions on presence, the court held that the trial judge's directions were not erroneous and were sufficiently related to the facts. The court also found that the verdicts were not inconsistent and were safe and satisfactory.

No further orders were made by the court.

Orders