R v Ali - [2004] VSCA 58

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.209 of 2002

THE QUEEN
	v.
OSOBLE HASSAN ALI

---

JUDGES:	BATT, J.A. and SMITH and O'BRYAN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2004
DATE OF JUDGMENT:	22 April 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 58

---

CRIMINAL LAW – Discharge of jury – Juror’s conversation with a barrister friend about defence counsel – Juror, but not jury, discharged – Whether miscarriage of justice .

CRIMINAL LAW – Conduct of trial counsel – Advice not to give evidence – Rape counts – Defence of consent – What evidence required to support ground – Not objecting to admission of evidence of interviews containing false denials of intercourse – Whether miscarriage of justice.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. A.J. Palmer	Lethbridges
For the Respondent	Mr. W. Morgan-Payler, Q.C.	Ms. K. Robertson, Solicitor for Public Prosecutions

BATT, J.A.:

On 3 April 2002 the applicant, Osoble Hassan Ali, who was born on 3 March 1972, and who had been committed for trial after a contested committal hearing, pleaded not guilty in the County Court at Melbourne to eight counts of rape and one count of false imprisonment. The trial proceeded. At the conclusion of the Crown case the prosecutor asked the judge to direct the jury to bring in a verdict of not guilty on count 2 on the ground that there was no evidence of the offence alleged in that count. His Honour agreed and directed the jury as requested. It returned a verdict of not guilty in respect of that count. The applicant neither called nor gave evidence in his defence. On 10 April the jury returned its verdicts, finding the applicant guilty of all remaining counts. After hearing a plea in mitigation of penalty on four occasions over an extended period due to the delay in the furnishing of a pre-sentence psychiatric report, his Honour on 22 August 2002 sentenced the applicant as a serious sexual offender by reason of convictions sustained on 15 September 2000 for offences committed in September 1997, imposing on him various terms of imprisonment and making directions for them to be served partially cumulatively, with the result that the total effective sentence was imprisonment for eight years and one month, in respect of which his Honour fixed a non-parole period of five years and four months. His Honour directed that the sentences imposed that day should be served concurrently with any sentence that the applicant was then serving.

By notices filed on 2 September 2002 the applicant sought leave to appeal against conviction and against sentence. He subsequently abandoned the latter application. On 12 March 2004 the Registrar granted him leave to add a sixth ground to the grounds of appeal in the notice of application touching conviction. Grounds 3, 4 and 5 are no longer pursued. The grounds now relied on accordingly are:

1.The Learned Trial Judge erred in law or in the exercise of his discretion in refusing to discharge the…

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 Ali

Details

AGLC: R v Ali [2004] VSCA 58
Case: [2004] VSCA 58
Decision Date: 22 April 2004

CaseChat Overview and Summary

The case of R v Ali involved a criminal trial in which the appellant was charged with multiple counts of sexual assault. The jury ultimately acquitted the appellant of the charges. However, the trial judge discharged one juror after learning that the juror had engaged in a conversation with a barrister friend about the defence counsel's strategy. The appellant subsequently appealed the conviction, arguing that the discharge of the juror and certain aspects of the defence counsel's conduct constituted a miscarriage of justice.

The legal issues before the court were whether the discharge of the juror, without the entire jury being discharged, constituted a miscarriage of justice, and whether the defence counsel's conduct amounted to a miscarriage of justice. The court had to consider the impact of the juror's conversation on the fairness of the trial, as well as the adequacy of the defence counsel's advice and conduct throughout the trial. Specifically, the court examined whether the defence counsel's decision not to call the appellant to give evidence and to advise against objecting to the admission of certain evidence, amounted to ineffective assistance.

The court held that the discharge of the single juror did not amount to a miscarriage of justice. It was found that the conversation between the juror and the barrister friend did not prejudice the trial or the juror's impartiality. The court further determined that the defence counsel's conduct did not constitute a miscarriage of justice. The appellant had not provided sufficient evidence to support a claim that the defence counsel's advice not to give evidence was unreasonable. Similarly, the failure to object to certain evidence did not amount to ineffective assistance, as the evidence was not crucial to the outcome of the trial.

The appeal was dismissed, and the convictions were upheld. The court found no basis to conclude that the trial was unfair or that the appellant's rights to a fair trial were infringed.

Orders