R v Aydin - [2005] VSCA 85

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 176 of 2004

THE QUEEN
	v.
ALI AYDIN

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JUDGES:	CALLAWAY, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 February and 1 March 2005
DATE OF JUDGMENT:	3 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 85

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Criminal law – Attempting to pervert the course of justice – Controlled police operation – Whether acts allegedly done by applicant and co-offender had a tendency to pervert the course of public justice – Only an abstract or theoretical tendency required – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. with Mr C.B. Boyce	MMR Legal

CALLAWAY, J.A.:

This judgment is intended to be read in conjunction with my judgment in Director of Public Prosecutions v. Aydin and Kirsch[1]. The applicant was presented in the County Court, together with Helmut Kirsch, on one count of doing acts tending and intended to pervert the course of public justice. The presentment alleged that at Melbourne on 4^th July 2001, with intent to pervert the course of public justice, the applicant and Kirsch did a series of acts which had a tendency to pervert the course of public justice: they made threats to Detective Senior Constable Benjamin Archbold for the purpose of improperly influencing the prosecution of Houssam Zayat, in which Mr Archbold was the informant, by inducing him not to oppose the granting of bail to Zayat and to reduce the number of charges against him, contrary to Mr Archbold’s duty.
[1][2005] VSCA 86.

The applicant and Kirsch were tried separately. Each of them was convicted. No previous convictions or findings of guilt were alleged against Aydin, but he had later been charged, together with Darrin James Flett, with conspiracy to do acts tending and intended to pervert the course of public justice.[2] At the time he was sentenced for the present offence, he had been found guilty of the conspiracy with Flett and was awaiting sentence. Kirsch had an extensive criminal history. After hearing separate pleas on their behalf, Judge Strong sentenced the applicant to 12 months' imprisonment with a non-parole period of six months. His Honour sentenced Kirsch to 15 months' imprisonment, of which all but the 274 days already served was suspended for an operational period of two years. This judgment is concerned solely with Aydin’s application for leave to appeal against conviction. [3]
[2]See R. v. Aydin and Flett [2005] VSCA 87.
[3]The applicant’s sentence is dealt with in Director of Public Prosecutions v. Aydin and Kirsch. The conclusion in that case is that the sentence was too lenient.

There are four grounds of appeal in the full statement of grounds filed pursuant to Rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998:

“1.Upon the facts relied upon by the Crown, the applicant could not, as a matter of law, have been convicted of the offence…

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 Aydin

Details

AGLC: R v Aydin [2005] VSCA 85
Case: [2005] VSCA 85
Decision Date: 3 May 2005

CaseChat Overview and Summary

The case of R v Aydin involved the applicant, who was charged with attempting to pervert the course of justice during a controlled police operation. The applicant sought to have the charge dismissed on the basis that his alleged acts did not have a tendency to pervert the course of public justice. The matter was heard in the Supreme Court of Queensland.

The central legal issue before the court was whether the applicant's alleged acts had a tendency to pervert the course of justice, even if the operation was controlled. The court needed to determine whether the tendency to pervert the course of justice required a real and substantial risk, or merely an abstract or theoretical tendency. This distinction was critical in assessing whether the charge should be dismissed at the application stage.

The court examined the relevant legislative provisions and relevant case law to determine the appropriate test for the tendency to pervert the course of justice. The court concluded that only an abstract or theoretical tendency was required to establish the offence. The court found that the applicant's alleged acts did have a tendency to pervert the course of justice, even if the police operation was controlled. Consequently, the application to dismiss the charge was dismissed.

The court did not make any specific orders beyond dismissing the application to dismiss the charge against the applicant.

Orders