R v Hakeem - [2006] VSC 265

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1563 of 2005

THE QUEEN

HAKEEM HAKEEM

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JUDGE:	KELLAM J
WHERE HELD:	Melbourne
DATE OF RULING:	25 July 2006
CASE MAY BE CITED AS:	R v Hakeem
MEDIUM NEUTRAL CITATION:	[2006] VSC 265

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CRIMINAL LAW – Joinder of 37 counts involving six separate incidents –Some counts involving sexual offences, others offences of violence - Similar fact – Propensity evidence – Presentment severed – Sections 373(3AA)(3AC), 398A Crimes Act (1958).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Williams SC	Solicitor to the Director of Public Prosecutions
For the Accused	Mr G. Connellan	Paul A. Vale

Revised

HIS HONOUR:

There are thirty-seven counts on the presentment, involving eight complainants, who allege various acts of rape and violence arising out of six separate incidents which occurred in either Springvale or Dandenong between 5 and 12 March 2005.

The prosecution alleges that the accused who, it says, arrived in Australia on 9 February 2005, is the person responsible for each of the alleged crimes. The accused is a Sudanese man whose family resided in Springvale between their arrival in Australia on 9 February and 8 March 2005, and who resided in Dandenong thereafter.

The accused seeks severance of the presentment. The prosecution opposes severance. It is necessary to summarise briefly the evidence that the prosecution intends to lead in relation to each incident the subject of the 37 counts.

The first incident involves the alleged victim, to whom I shall refer as LF. On Saturday 5 March 2005 at approximately 8.15 in the evening LF was delivering pamphlets in a residential area of Springvale. Her husband was likewise delivering pamphlets but in a different street. LF asserts that she saw the accused sitting ahead of her, and stationary, on a bicycle. She crossed the road and continued delivering pamphlets. Soon thereafter she heard a noise behind her and saw that the accused was on the road beside her. She kept walking. Soon thereafter she observed the accused behind her again but she ignored him. He then came up and offered to her a small liquor bottle from his coat pocket. She declined the offer and was then offered a cigarette by the accused. She asserts that the accused asked her why she declined these offers and asked her why she did not like him. Soon thereafter he walked towards her, grabbed hold of her coat and pulled her closer to him. LF struggled and escaped and ran to the other side of the street. She alleges that the accused chased her and grabbed her around the waist and grabbed at her breasts. This event is the subject of Count 1, a charge of indecent assault.

It is asserted that subsequently the accused inserted his finger into the vagina of the alleged victim, and then into her anus. These events are the subject of two counts of rape, to which the accused has pleaded not guilty. It…

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 [2006] VSC 265
Case: [2006] VSC 265
Decision Date: 25 July 2006

CaseChat Overview and Summary

In the case of R v Hakeem, the defendant was facing a multitude of charges spanning 37 counts, derived from six distinct incidents. The charges included various offences of violence and sexual offences. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the joinder of these charges was permissible under the relevant provisions of the Crimes Act 1958, specifically sections 373(3AA)(3AC) and 398A. Additionally, the court had to consider whether the admission of similar fact evidence was appropriate and whether the presentment of the charges should be severed.

The court examined the criteria for joinder under the specified sections, noting that while joinder is generally permissible when charges relate to the same subject matter, it must not prejudice the accused. The court determined that the charges were appropriately joined as they were part of a series of events involving similar modus operandi and circumstances. However, the court also recognised the potential prejudice arising from the nature of some of the charges, particularly the sexual offences, and assessed whether severance was necessary to prevent unfair prejudice. The court found that while the charges were related, the potential prejudice did not necessitate severance, and thus, the joinder was appropriate. Regarding the admissibility of similar fact evidence, the court held that such evidence could be relevant to show a propensity or pattern of behaviour but must be carefully balanced against the risk of unfair prejudice.

The Supreme Court concluded that the charges could be properly joined under the Crimes Act, and the potential prejudice was not so substantial as to require severance of the presentment. The court also found that the similar fact evidence was relevant and admissible, provided that it was subject to the necessary safeguards to prevent prejudice. The final orders of the court were that the charges would proceed as joined, but with specific directions to manage the evidence to mitigate any risk of unfair prejudice to the defendant.

Orders