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R v Hussein and Hussein

R v Hussein and Hussein

Case [2006] QCA 411 20 October 2006

Appeal

Unreasonable or Insupportable Verdict

Fair Trial

Sentencing

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Hussein & Hussein [2006] QCA 411

PARTIES:

R
v
HUSSEIN, Afsheen Kashef
(appellant/applicant)

R
v
HUSSEIN, Azhar Zuhayr
(appellant/applicant)

FILE NO/S:

CA No 26 of 2006
CA No 146 of 2006
CA No 31 of 2006
CA No 147 of 2006
DC No 2089 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2006

JUDGE:

Jerrard JA, Jones and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeals against convictions dismissed
2. Applications for leave to appeal against sentences refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellants/applicants were each convicted by a jury of six counts of rape against the first complainant – appellants/applicants were each acquitted by the jury of three counts of rape alleged against the first complainant – both appellants/applicants also pleaded guilty to 10 counts of rape and one count of deprivation of liberty of the second complainant – one appellant/applicant also pleaded guilty to one count of stealing – whether the six convictions and three acquittals in respect of the first complainant were inconsistent and irreconcilable with the directions given by the trial judge – whether the convictions on six counts of rape against the first complainant were unsafe and unsatisfactory having regard to the evidence – whether the trial judge erred by stating a personal view on a question of fact – whether the appellants/applicants were denied a fair trial because a support person of one of the complainants uttered an inadmissible opinion on the accuracy of the complainant’s evidence – whether the trial judge adequately summed-up the defence case

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICUALR OFFENCES – SEXUAL OFFENCES – whether the sentences were manifestly excessive in all the circumstances

MacKenzie v The Queen (1997) 190 CLR 348, cited
Osland v The Queen (1998) 197 CLR 316, cited
R v Barclay [1999] QCA 457; CA No 272 of 1999, 3 December 1999, considered
R v DAL [2005] QCA 281; CA No 74 of 2005, 12 August 2005, cited
R v Gerrits (unrep., Williams, Ambrose and Cooper JJ, QCA, CA No 158 of 1991, 1192 of 1991, 4 October 1991), considered
R v Mason and Saunders [1997] QCA 421; CA Nos 355 of 1997, 357 of 1997, 28 November 1997, considered
R v Mitchell [1998] QCA 031; CA Nos 355 of 1997, 356 of 1997, 357 of 1997, 13 February 1998, considered
R v Tenniment [1992] QCA 110; CA No 38 of 1992, 29 April 1992, considered

COUNSEL:

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 Hussein and Hussein

Details

AGLC: R v Hussein and Hussein [2006] QCA 411
Case: [2006] QCA 411
Decision Date: 20 October 2006

CaseChat Overview and Summary

The case of R v Hussein and Hussein involved two appellants who were convicted by a jury on six counts of rape against the first complainant, while being acquitted on three other counts of rape related to the same complainant. Additionally, both appellants pleaded guilty to multiple counts of rape and deprivation of liberty concerning a second complainant, with one appellant also pleading guilty to stealing. The appellants sought to appeal their convictions, arguing various grounds, including the inconsistency of the verdicts, the unreliability of the evidence leading to their convictions, and alleged errors by the trial judge. They also sought to appeal against the severity of their sentences.

The primary legal issues addressed by the court included whether the jury's verdicts were inconsistent and irreconcilable with the trial judge's directions, whether the convictions were unsafe and unsatisfactory, and whether there were errors in the judge's conduct that prejudiced the trial. The court also considered whether the appellants were denied a fair trial due to an inadmissible opinion expressed by a support person of one of the complainants. Furthermore, the appellants challenged the adequacy of the trial judge's summation of the defence case.

After thorough examination, the court dismissed the appeals against the convictions, finding no grounds to consider the verdicts inconsistent or unreliable. The court held that the trial judge did not err in stating a personal view on a fact question and found that the appellants were not deprived of a fair trial by the inadmissible opinion. The court also determined that the trial judge's summation of the defence was adequate. Regarding the appeals against sentence, the court refused the applications to reduce the sentences, concluding that they were not manifestly excessive. The appeals against both convictions and sentences were thus dismissed, and the applications for leave to appeal against the sentences were refused.

Orders

Orders of the court

1. Appeals against convictions dismissed

2. Applications for leave to appeal against sentences refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Hussein and Hussein [2006] QCA 411

Most Recent Citation

R v AAG & AAH [2009] QCA 158

Cases citing this decision · 7 of 7 shown

R v Makary
[2018] QCA 257

…[2000] 1 Qd R 437; [1998] QCA 276 , considered R v Robinson [2007] QCA 349 , discussed R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534, cited R v Turnbull [2013] QCA 374 , distinguished Sancoff v Holford; Ex parte Holford [1973] Qd R 25, cited COUNSEL: The appellant appeared on his own behalf in the conviction…
R v Turnbull
[2013] QCA 374 Para 1

…A 331; R v Burley ex parte Attorney-General (Qld) [1998] QCA 98; R v Breckenridge [1966] Qd R 189; R v Buckley [2008] QCA 45; R v Hussein & Hussein [2006] QCA 411; R v Dargin [2013] QCA 20; R v Colless [2010] QCA 26.…
R v Dargin
[2013] QCA 20 Para 1

…to draw a distinction between the charges of digital rape and the other rape charges. [6][2011] 2 Qd R 421. [7][2008] QCA 172. [8][2007] QCA 349. [9][2006] QCA 411.…
R v Hill
[2012] QCA 59 Para 1

…of 15 years, for two separate episodes of rape, was described by the Court of Appeal as high but not manifestly excessive. [3] R v Hussein & Hussein [2006] QCA 411.…
R v AAH and AAG
[2009] QCA 321 Para 1

…r a trial would probably have been sentenced to between 11 and 13 years imprisonment; (at [18] – [19]) that the analysis in R v Hussein & Hussein [2006] QCA 411 (concerning sentences imposed upon the applicants’ co-offenders) suggested error in the sentencing judge’s apparent acceptance that a 15 year term of imp…
R v Hussein & Hussein
[2009] QCA 246 Para 1

…before the Court any evidence to demonstrate that a psychologist's report, if obtained, would have been to their advantage. [1] R v Hussein & Hussein [2006] QCA 411 at [52].…
R v AAG and AAH
[2009] QCA 158 Para 1

…ces against C, including Mitchell and Mason and Saunders and also R v Barclay ,[9] R v Penniment [10] and R v Gerrits .[11] [8] R v Hussein & Hussein [2006] QCA 411 at [44]-[49]. [9][1999] QCA 457. [10][1992] QCA 110. [11]CA No 158 of 1991, unreported, 4 October 1991.…

View all 7 citing cases →

Cases cited in this decision · 7 of 7 shown

R v DAL
[2005] QCA 281

…) 197 CLR 316, cited R v Barclay [1999] QCA 457; CA No 272 of 1999, 3 December 1999, considered R v DAL [2005] QCA 281; CA No 74 of 2005, 12 August 2005, cited R v Gerrits (unrep., Williams, Ambrose and Cooper JJ, QCA, CA No 158 of 1991, 1192 of 1991, 4 October 1991), considered R v Mason and Saunders [1997] QCA…
R v Barclay
[1999] QCA 457 Para 1

…In R v Barclay [1999] QCA 457 [44] this Court upheld a sentence of 15 years imprisonment imposed after a trial upon an offender who had entered the victim’s place of accommodation when she was sleeping, severely bashed her, and then raped her. That offender did not use a weapon, but his assault was a very serious…
Osland v The Queen
[1998] HCA 75

…y excessive in all the circumstances MacKenzie v The Queen (1997) 190 CLR 348, cited Osland v The Queen (1998) 197 CLR 316, cited R v Barclay [1999] QCA 457; CA No 272 of 1999, 3 December 1999, considered R v DAL [2005] QCA 281; CA No 74 of 2005, 12 August 2005, cited R v Gerrits (unrep., Williams, Ambrose and Cooper…
R v Mason and Saunders
[1997] QCA 421 Para 1

…s and 12 years imprisonment respectively, likewise had the declarations removed from their sentences, in a separate appeal ( R v Mason and Saunders [1997] QCA 421 [43] ). The judgments of this Court in R v Mitchell and R v Mason and Saunders do not record any complaint about the head sentences other than the fact…
Mackenzie v The Queen
[1996] HCA 35

…FENCES – whether the sentences were manifestly excessive in all the circumstances MacKenzie v The Queen (1997) 190 CLR 348, cited Osland v The Queen (1998) 197 CLR 316, cited R v Barclay [1999] QCA 457; CA No 272 of 1999, 3 December 1999, considered R v DAL [2005] QCA 281; CA No 74 of 2005, 12 August 2005, cited R v…
R v Penniment
[1992] QCA 110 Para 1

…nd a conviction for assault occasioning bodily harm in 1985. This Court held that the 15 year sentence was supported by cases such as R v Tenniment [1992] QCA 110 [45] , R v Gerrits (unrep., Williams, Ambrose and Cooper JJ, QCA, CA No 158 of 1991, 1192 of 1991, 4 October 1991), and the judgment in R v Mason . [44…
QCA 421, considered R v Mitchell
[1998] QCA 031 Para 1

…They referred to a matter of R v Mitchell [1998] QCA 031 [42] , in which that applicant was sentenced after a trial to 15 years imprisonment on four counts of rape, two counts of indecent assault with an aggravating circumstance (anal intercourse), three counts of indecent assault with an aggravated circumstance…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Hussein & Hussein [2006] QCA 411
PARTIES:	R v HUSSEIN, Afsheen Kashef (appellant/applicant) R v HUSSEIN, Azhar Zuhayr (appellant/applicant)
FILE NO/S:	CA No 26 of 2006 CA No 146 of 2006 CA No 31 of 2006 CA No 147 of 2006 DC No 2089 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 October 2006
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2006
JUDGE:	Jerrard JA, Jones and Atkinson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeals against convictions dismissed 2. Applications for leave to appeal against sentences refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellants/applicants were each convicted by a jury of six counts of rape against the first complainant – appellants/applicants were each acquitted by the jury of three counts of rape alleged against the first complainant – both appellants/applicants also pleaded guilty to 10 counts of rape and one count of deprivation of liberty of the second complainant – one appellant/applicant also pleaded guilty to one count of stealing – whether the six convictions and three acquittals in respect of the first complainant were inconsistent and irreconcilable with the directions given by the trial judge – whether the convictions on six counts of rape against the first complainant were unsafe and unsatisfactory having regard to the evidence – whether the trial judge erred by stating a personal view on a question of fact – whether the appellants/applicants were denied a fair trial because a support person of one of the complainants uttered an inadmissible opinion on the accuracy of the complainant’s evidence – whether the trial judge adequately summed-up the defence case CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICUALR OFFENCES – SEXUAL OFFENCES – whether the sentences were manifestly excessive in all the circumstances MacKenzie v The Queen (1997) 190 CLR 348, cited Osland v The Queen (1998) 197 CLR 316, cited R v Barclay [1999] QCA 457; CA No 272 of 1999, 3 December 1999, considered R v DAL [2005] QCA 281; CA No 74 of 2005, 12 August 2005, cited R v Gerrits (unrep., Williams, Ambrose and Cooper JJ, QCA, CA No 158 of 1991, 1192 of 1991, 4 October 1991), considered R v Mason and Saunders [1997] QCA 421; CA Nos 355 of 1997, 357 of 1997, 28 November 1997, considered R v Mitchell [1998] QCA 031; CA Nos 355 of 1997, 356 of 1997, 357 of 1997, 13 February 1998, considered R v Tenniment [1992] QCA 110; CA No 38 of 1992, 29 April 1992, considered
COUNSEL: