R v Aoukar - [2011] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v AOUKAR
[2011] SASCFC 96
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Peek)
26 August 2011
CRIMINAL LAW - EVIDENCE - COMMENT ON FAILURE TO GIVE EVIDENCE - BY JUDGE
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - MISCELLANEOUS MATTERS - JOINT TRIAL
CRIMINAL LAW - PROCEDURE - PLEAS - PLEAS IN BAR - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER SUFFICIENT BAR - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction - appellant and co-accused tried for charges of blackmail, assault and theft - prosecution case was that the co-accused committed the offences pursuant to a joint criminal enterprise - appellant was convicted on all counts, with the verdict in respect of the assault charge being reached by majority - appellant had given evidence in his defence in a previous trial but had declined to give evidence in the present trial - appellant's evidence from the previous trial was read to jury - whether direction as to defendant's decision not to give evidence was sufficient - whether directions were sufficient regarding admissibility of evidence if jury found joint criminal enterprise was not proved - whether judge erred in taking a verdict on the assault charge once a verdict of guilty was returned on the blackmail charge - whether unanimous verdict on count 1 was inconsistent with majority verdict on count 2 - whether verdicts unsafe or unsatisfactory.
Held: appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 171, referred to.
Pearce v The Queen (1998) 194 CLR 610, applied.
R v Robinson and Tiplady (1985) 123 LSJS 37, discussed.
R v Machin (No 2) (1997) 69 SASR 403; R v Harbach (1973) 6 SASR 427; Mawaz Khan v The Queen [1967] 1 AC 454; R v Kamleh [2003] SASC 269, considered.

R v AOUKAR
[2011] SASCFC 96
Court of Criminal Appeal: Doyle CJ, Vanstone and Peek JJ

DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons given by Vanstone J. There is nothing that I wish to add to those reasons.
VANSTONE J: The appellant and a co-accused, Nicolitsi, were tried in the District Court before a judge and jury on an information charging them jointly with blackmail, assault and theft. The prosecution alleged a joint enterprise in respect of each count. There were convictions on all counts, in the case of the assault, by majority verdicts.
The appellant now appeals, with permission, alleging errors by omission in the summing up, that no verdict should have been taken on the assault because the same conduct was part of the blackmail offence, and that the verdicts are unsafe and unsatisfactory.
Background
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 Aoukar

Details

AGLC: R v Aoukar [2011] SASCFC 96
Case: [2011] SASCFC 96
Decision Date: 26 August 2011

CaseChat Overview and Summary

The appeal concerned a conviction for blackmail, assault, and theft. The appellant, along with a co-accused, was alleged to have committed these offences as part of a joint criminal enterprise. The appellant had previously given evidence in an earlier trial but chose not to testify in the current proceedings, although his prior testimony was read to the jury. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Doyle CJ, Vanstone and Peek JJ.

The central legal issues before the court were whether the trial judge's directions to the jury regarding the appellant's failure to give evidence were sufficient, and whether the directions concerning the admissibility of evidence in the event the joint criminal enterprise was not proven were adequate. Further, the court considered whether the judge erred in accepting a verdict on the assault charge after a guilty verdict had already been returned for blackmail, and whether the verdicts were inconsistent or otherwise unsafe and unsatisfactory given the evidence.

The court found that the questions raised by the grounds of appeal were matters for the jury to consider and had been adequately put to them by counsel. After reviewing the entirety of the evidence, the court was satisfied that the jury was entitled to rely on the victim's testimony and that the verdicts reached were reasonable.

Consequently, the appeal against conviction was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant now appeals, with permission, alleging errors by omission in the summing up, that no verdict should have been taken on the assault because the same conduct was part of the blackmail offence, and that the verdicts are unsafe and unsatisfactory.Background The victim of all offences was a Mr Rowan. He was in a relationship with a woman whom I shall call “C”. C’s sister was married to a Mr Clemente, who ran a shop. As will be seen, the prosecution case was rather curious. There was a suggestion of a failed drug venture involving some of the witnesses and persons mentioned in the trial. According to Rowan’s evidence, there was an argument between Rowan and C. Clemente became involved in it. In front of Clemente, C suggested that Rowan’s boss was a motor cycle club member. Clemente reacted very angrily to this suggestion. Rowan was apprehensive because of the way in which Clemente reacted. A few days later on 25 November 2005 Clemente rang Rowan telling him that there were some men at his shop who wanted to talk to Rowan about Rowan’s boss. He went there. Clemente made a telephone call. Three men arrived shortly afterwards. It was admitted at trial that two of the three men were the accuseds. They were wearing “Hells Angels” shirts. They acted in an intimidating manner towards Rowan and there was talk of whether Rowan’s boss was in fact a motor cycle club member. Later Clemente told Rowan he was required to go to the shop again. This was 29 November 2005, the date specified in the blackmail and assault charges. Once there, Clemente told him to do whatever was required to co-operate. Again, Clemente made a phone call. Two men arrived. It was admitted that the two men who arrived were the accused men. Only the shorter one –inferentially the appellant – spoke to Rowan. Rowan was intimidated again. He was told “We [are] there for you” and asked how much it was worth to him. Then he said he was punched to the face by the appellant. He was also slapped by the appellant. Eventually Rowan suggested it was worth $10,000 to $20,000. Both men smiled. They focussed on the $20,000 figure and seemed happy with it. Rowan said he did not know why he was supposed to owe this money. The appellant said he wanted it by the following Monday. Afterwards, when Rowan left the premises he saw a parking inspector who asked him “What’s happened to you?”. Rowan said he thought the men were Hells Angels. He was very scared. He tried, but could not obtain $20,000 to pay the men. However, a week or so later, he was told by Clemente that he was required to take his green Holden Commodore motor vehicle to the shop. He understood that his car was to be handed over to the two men. He took his car there, as instructed, and left it with the keys in it. He did not see the car again. However, his involvement with the men continued, as he was required to arrange a purchaser for the car by advertising it and he liaised with the appellant for that purpose.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have considered all of the arguments put by counsel in support of this ground. They were questions for the jury to consider and they were put to the jury by counsel then acting. None of these raises disquiet about the verdicts. Having considered the arguments in the light of the whole of the evidence, I am satisfied that the jury was entitled to act upon the evidence of Rowan and that the verdicts rendered were reasonable ones.Conclusion None of the grounds of appeal has been made good. I would dismiss the appeal. PEEK J: I would dismiss the appeal against conviction. I agree with the reasons of Vanstone J.

Ratio Decidendi

Legal Principle Established

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