R v Hakeem - [2009] VSCA 131

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 519 of 2007

THE QUEEN
	v
HAKEEM HAKEEM

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JUDGES:	VINCENT and NEAVE JJA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 March 2009
DATE OF JUDGMENT:	10 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 131
JUDGMENT APPEALED FROM:	[2007] VSC 5 (Kellam J)

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CRIMINAL LAW – Conviction – Aggravated burglary – False imprisonment – Attempted rape – Rape – Causing serious injury – Right to silence – Whether s 399(3) Crimes Act 1958 breached – Whether admission of record of interview unfair in the circumstances – Consciousness of guilt – Evidence of distress – Evidence of self harm by victim – Application refused.

CRIMINAL LAW – Sentence – Whether manifestly excessive – Age – Background – Drug use – Relevant considerations carefully addressed – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr S Gillespie-Jones with Ms D Jefferson	Paul Vale Criminal Law

VINCENT JA
NEAVE JA
VICKERY AJA:

On 14 August 2006, the applicant pleaded guilty in the Supreme Court to aggravated burglary (count 1), false imprisonment (count 2), attempted rape (count 3), rape (count 4), causing serious injury intentionally (count 5) and armed robbery (count 6). These offences were contained in Presentment T00581038B.

He also pleaded guilty to the charges in Presentment T00581038E namely, rape, (counts 1-5) and of causing injury intentionally (counts 6 and 7).

He pleaded not guilty however to two further counts of rape (counts 1 and 2) and one of false imprisonment (count 3) contained in a third Presentment, T00581038A. On 24 August 2006, the applicant was found guilty by the jury on counts 1 and 3 on that Presentment. He now seeks to appeal against these convictions on the grounds that –

1.a miscarriage of justice occurred as a result of the prosecutor’s breach of s 399(3) of the Crimes Act 1958.

2. a miscarriage of justice occurred as a result of the prosecutor
(a)failing to give notice of her intention to rely on consciousness of guilt.

(b) failing to open consciousness of guilt.
(c)failing to advise that she would rely on consciousness of guilt at the time of the admission of the interview.

3.a miscarriage of justice was occasioned by the admission of the record of interview.
4.a miscarriage of justice occurred as a result of the learned trial judge’s failure to warn as to the distress of the complainant.

5. the conviction for rape was unsafe and unsatisfactory.
6.the learned trial judge erred in permitting the prosecution to go to the jury on the basis that a crime could be proven without it being proved beyond reasonable doubt that the applicant penetrated the complainant.

7. a miscarriage of justice occurred by an aggregate of errors.

The applicant had no prior convictions, and, after a plea in mitigation of penalty was presented on his behalf, on 30 January 2007, he was sentenced to a…

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 Hakeem

Details

AGLC: R v Hakeem [2009] VSCA 131
Case: [2009] VSCA 131
Decision Date: 10 June 2009

CaseChat Overview and Summary

The case of R v Hakeem involved the defendant, Hakeem, who was convicted of several serious criminal offences, including aggravated burglary, false imprisonment, attempted rape, rape, and causing serious injury. Hakeem appealed against his conviction and sentence before the court. The primary legal issues that the court had to decide were whether there had been a breach of section 399(3) of the Crimes Act 1958, which pertains to the right to silence, and whether the admission of the record of an interview was unfair in the circumstances. Additionally, the court needed to consider whether the evidence of the victim's distress and self-harm should have been admitted, and whether Hakeem's sentence was manifestly excessive.

The court carefully examined the evidence and arguments presented by both parties. It determined that there had been no breach of Hakeem's right to silence, as the relevant provisions of the Act had been followed correctly. The court also found that the admission of the interview record was not unfair, as it was necessary to understand the context of the case and the circumstances surrounding the offence. Furthermore, the court held that the evidence of the victim's distress and self-harm was relevant and admissible, as it helped to establish the impact of the crime on the victim. In relation to the sentence, the court considered various factors, including Hakeem's age, background, drug use, and the nature of the offences committed. The court concluded that the sentence was not manifestly excessive, as it had carefully weighed the relevant considerations and taken into account the circumstances of the case.

The court's decision was that the appeal against the conviction and sentence was dismissed. Hakeem's conviction and sentence were upheld, and the application for relief was refused. The court found that the evidence was sufficient to support the conviction, and that the sentence imposed was appropriate in the circumstances.

Orders