R v Azad - [2007] VSC 115

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6573 of 2006

THE QUEEN

ZAKI MOHAMMAD AZAD
and
COUNTY COURT OF VICTORIA

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JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2007
DATE OF JUDGMENT:	26 April 2007
CASE MAY BE CITED AS:	The Queen v Zaki Mohammad Azad and County Court of Victoria
MEDIUM NEUTRAL CITATION:	[2007] VSC 115

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Trapnel	Office of Public Prosecutions
For the Firstnamed Defendant	Mr Johns	Galbally & O’Bryan
For the Secondnamed Defendant	No Appearance

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HER HONOUR:

This is the return of an originating summons seeking an order to review the decision of the County Court constituted by her Honour Judge Lewitan made on 26 March 2006 to permanently stay the proceedings on Counts 1 and 2 of Presentment No. S00199207.

By that presentment, the firstnamed defendant was charged with two counts of attempting to procure sexual penetration by threats and one count of possession of child pornography contrary to s.57(1) and s.321M and s.70 of the Crimes Act 1958, to which he pleaded not guilty.

Her Honour permanently stayed the two counts of attempting to procure sexual penetration by threats as an abuse of process of the court on the basis that the case against the firstnamed defendant was, on those counts, “foredoomed to failure”. The trial on the count of the possession of child pornography was adjourned pending the review of her Honour’s decision.

The grounds upon which relief is sought is that in making the orders that Counts 1 and 2 on Presentment No. S00199207 in County Court Case No. CR0500598 be permanently stayed her Honour committed an error of law which error appears on the face of the record.

In particular, her Honour erred in:

(1)concluding that on the available evidence the prosecution:
“Will not be able to prove beyond reasonable doubt that the physical act that the accused intended to procure as a result of his threats was that of sexual penetration.”
and as a result the proceedings were an abuse of process;

(2)in inferring that the demands made by the accused could not be interpreted by a jury acting reasonably as involving a demand for sexual penetration; and
(3)in determining that the proceedings were an abuse of process.

For the purpose of this application it was agreed that the record involved: the transcript of proceedings in the County Court, her Honour’s decision and her reasons, and the affidavit of Miss Karamitos which included the Crown opening. Mr Johns submitted that the depositions did not form part of the record as they were not referred to over and above the statement of the complainant and the passage from the committal that related to the very conversations. He took particular issue with parts of the record of interview which were here sought to be relied upon but were not canvassed in the lower Court.

Mr Trapnel submitted that 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 Azad

Details

AGLC: R v Azad [2007] VSC 115
Case: [2007] VSC 115
Decision Date: 26 April 2007

CaseChat Overview and Summary

The case of R v Azad involved an originating summons seeking a review of a County Court decision to permanently stay the proceedings on Counts 1 and 2 of a presentment. Zaki Mohammad Azad was charged with two counts of attempting to procure sexual penetration by threats and one count of possession of child pornography. The defendant pleaded not guilty. The County Court judge permanently stayed the two counts of attempting to procure sexual penetration by threats, determining that the case against the defendant was "foredoomed to failure" and constituted an abuse of process. The trial on the count of possession of child pornography was adjourned pending the review of the County Court's decision. The applicant argued that the County Court judge erred in concluding that the prosecution could not prove the requisite intent for the charges of attempting to procure sexual penetration by threats.

The legal issue before the Supreme Court was whether the County Court judge erred in law by determining that the Crown case was "foredoomed to fail" and ordering a stay on Counts 1 and 2 of the presentment. The Court considered whether there was an incurable vice in the evidence that would justify a stay and whether the decision to stay the proceedings was an abuse of process.

The Supreme Court found that the County Court judge erred in determining that the Crown case was "foredoomed to fail" and ordering a stay on Counts 1 and 2. The Court held that the issue of the defendant's intention was a matter for the jury, not the County Court judge. The evidence before the County Court judge was sufficient to warrant the committal of the defendant to trial, and the Crown Prosecutor had signed the presentment. The Supreme Court held that there was no incurable vice in the evidence that would justify a stay and that the decision to stay the proceedings was an abuse of process. The Supreme Court quashed the County Court's order staying Counts 1 and 2 of the presentment and remitted the case to the County Court for trial according to law.

Orders