R v Fahad - [2004] VSCA 28

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 316 of 2002

THE QUEEN
	v.
TONY FAHAD

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JUDGES:	WINNEKE, P., COLDREY and BONGIORNO, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2004
DATE OF JUDGMENT:	12 March 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 28

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Criminal law – Identification evidence – Whether evidence amounting to positive identification – For jury and not judge to determine – Other evidence supporting conclusion that convictions unsafe and unsatisfactory – Verdicts of acquittal entered.

Criminal law – Sentence – Applicant subsequently sentenced for other offences – Sentencing judge fixing new single non-parole period having regard to sentences imposed for offences in respect of which verdicts of acquittal entered – Applicant re-sentenced – Whether time in custody doubly warranted – Declaration of pre-sentence detention having regard to above circumstances – Ss. 11(3), 14 and 18 Sentencing Act 1991; s.568(4) Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. T. Gyorffy	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. M. J. Croucher	Clarebrough Pica

WINNEKE, P.:

I agree with Bongiorno, A.J.A., for the reasons which he gives, that the application for leave to appeal against the convictions recorded in the trial conducted by Judge Lewitan should be allowed; that the convictions and sentences should be set aside; and that in their stead verdicts of acquittal should be entered. I also agree, for the reasons advanced by Bongiorno, A.J.A. that the application for leave to appeal against the sentences imposed by Judge Hart should be allowed and that, in lieu thereof, the sentences proposed by Bongiorno, A.J.A. should be substituted; such sentences to commence from 12 December 2003 (the date on which the sentences were imposed by Judge Hart).

COLDREY, A.J.A.:

I agree that the verdicts are unsafe and unsatisfactory for the reasons stated by Bongiorno, A.J.A. I also agree with the orders proposed.

BONGIORNO, A.J.A.:

On 15 October 2002 the applicant, Tony Fahad, was arraigned before Her Honour Judge Lewitan and a jury in the County Court and pleaded not guilty to seven counts on a presentment filed against him alleging offences said to have occurred on 29 April 2001 on the edge of the Melbourne central business district. The offences to which Mr Fahad pleaded not guilty were robbery, attempted robbery, causing injury intentionally, causing injury recklessly, false imprisonment, armed robbery and reckless conduct endangering a person. The victim of each of these offences was a young woman, Kammy Le. A co-accused, Kym Christie, had earlier pleaded guilty to a presentment alleging counts of robbery, assault and false imprisonment, armed robbery and reckless conduct endangering a person arising

from the same incident involving Ms Le and had been remanded on bail for plea and sentence.

Upon Mr Fahad’s trial Ms Le described an event which she said occurred at about 4.40 pm on Sunday 29 April 2001 whilst she was waiting for a tram at the corner of Exhibition and Albert Streets (sic). In fact she meant Nicholson and Albert…

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 Fahad

Details

AGLC: R v Fahad [2004] VSCA 28
Case: [2004] VSCA 28
Decision Date: 12 March 2004

CaseChat Overview and Summary

The case of R v Fahad involved the defendant, Fahad, who faced criminal charges. The nature of the dispute centred on the reliability and sufficiency of identification evidence presented against him, as well as the appropriateness of the sentences he received following his acquittal on certain charges. The matter was heard and determined by the Supreme Court of Victoria.

The legal issues before the court included whether the identification evidence provided was sufficient for a jury to convict and whether other evidence supported the conclusion that Fahad's convictions were unsafe and unsatisfactory. Additionally, the court needed to address the fairness and appropriateness of the sentences imposed on Fahad for other offences, considering the time he had already spent in custody following his acquittal on certain charges. The court also had to consider whether Fahad's pre-sentence detention should be declared in light of these circumstances.

The court found that the identification evidence was not of a quality that would allow a jury to convict, and other evidence supported the conclusion that Fahad's convictions were indeed unsafe and unsatisfactory. Therefore, the court entered verdicts of acquittal on the charges in question. In terms of sentencing, the court considered the sentences imposed for the offences for which Fahad was acquitted and determined that the time he had already spent in custody should be taken into account. The court declared Fahad's pre-sentence detention, having regard to all the circumstances, and fixed a new single non-parole period for his sentences under the relevant sections of the Sentencing Act 1991 and the Crimes Act 1958.

Fahad was re-sentenced by the court, with the new sentence reflecting the time already served and the need for a fair and just outcome. The court's decision and reasoning provided clarity and guidance on the issues of identification evidence, the fairness of sentencing, and the appropriate application of sentencing laws in these circumstances.

Orders