R v Hussein and Hussein

Case [2006] QCA 411


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:

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

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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