Legal Research
Cases
R v Kerbatieh

R v Kerbatieh

Case [2005] VSCA 194 30 August 2005

Sexual offences

Natural Justice & Procedural Fairness

Admissibility of Evidence

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 178 of 2003

THE QUEEN
	v.
MOHAMMED KERBATIEH

---

JUDGES:	CHERNOV and NETTLE, JJ.A and BYRNE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 and 15 June 2005
DATE OF JUDGMENT:	30 August 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 194	3rd revision–30 September 2005

---

Criminal law – Sexual offences – Trial – Adjournment – Natural justice – Adjournment sought by accused after counsel withdrew during course of trial – Whether accused denied natural justice by refusal of adjournment – Procedure – Procedural fairness – Accused unrepresented after withdrawal of counsel – Whether unrepresented accused denied procedural fairness by trial judge failing to assist accused in conduct of defence or in failing to put defence fairly and firmly to jury – Evidence – Statement of accused to complainant that accused had been in gaol for killing three men – Relevance – Whether statement admissible as showing intimidation of complainant – Complainant’s out of court statement – Statement admitted to evidence at insistence of accused – Whether judge erred in receiving statement – Whether judge erred in directing jury as to use to be made of statements – Video tape of complainant’s evidence in chief – Portion of tape re-played to jury at their request after retiring to consider verdict – Whether tape should have been replayed – Whether judge erred in failing to redirect jury on remainder of complainant’s evidence – Similar fact evidence – Propensity evidence – Whether propensity direction adequate – Whether propensity direction must use the phrase “kind of person likely to commit the charged act” – Sentencing – Totality – Whether judge gave insufficient weight fact that all offences occurred within space of 17 days – Whether sentence crushing.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for the Office of Public Prosecutions
For the Applicant	Mr H.R. Carmichael	Mr Andrew George

CHERNOV, J.A.:
NETTLE, J.A.:

On 18 February 2003 the applicant, Mohammed Kerbatieh, who is now aged 35 years, pleaded not guilty to 22 of the 23 counts contained in a presentment which alleged that he committed various sexual offences against three school girls[1] (none of whom was known to him) between 24 September and 11 October 2001, namely, two counts of threatening to kill (counts 1 and 19), ten counts of rape (counts 2, 5, 6, 11, 13, 14, 16-18, 20), one count of attempted rape (count 3), two counts of common assault (counts 4 and 23), five counts of committing an indecent act with a child under 16 years of age (counts 7-9, 12 and 15), two counts of false imprisonment (counts 10 and 21) and one count of assault with intent to rape (count 22). The applicant pleaded guilty to count 23, which alleged common assault against the third complainant. After a trial lasting 20 hearing days, the applicant was convicted on 18 March 2003 of all counts to which he had pleaded not guilty other…

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 Kerbatieh

Details

AGLC: R v Kerbatieh [2005] VSCA 194
Case: [2005] VSCA 194
Decision Date: 30 August 2005

CaseChat Overview and Summary

The case of R v Kerbatieh was heard in the High Court of Australia. The accused, Kerbatieh, was on trial for various sexual offences. The key issues before the court were whether the refusal of an adjournment request by the trial judge, after the accused's counsel withdrew, denied Kerbatieh natural justice and procedural fairness. Additionally, the court considered whether certain evidence, including statements made by the accused and a video tape of the complainant's evidence, was correctly admitted and whether the judge's directions to the jury regarding these pieces of evidence were appropriate. The court also examined the adequacy of the direction given to the jury on the use of propensity evidence and the proportionality of the sentence imposed.

The High Court examined the circumstances surrounding the adjournment request and the judge's refusal, finding that Kerbatieh's rights to procedural fairness and natural justice were not breached. The court held that the judge did not err in admitting the accused's statement to the complainant or the complainant's out-of-court statement, and that the judge's directions to the jury regarding these pieces of evidence were appropriate. In relation to the video tape of the complainant's evidence, the court found that the judge did not err in replaying a portion of the tape at the jury's request and did not need to redirect the jury on the remainder of the complainant's evidence. The court also concluded that the judge's direction on propensity evidence was adequate, and that there was no requirement for the judge to use the specific phrase "kind of person likely to commit the charged act." Finally, the court found that the sentence imposed was not disproportionate.

The High Court dismissed the appeal and upheld the conviction and sentence. The court held that the trial judge did not err in any of the respects argued by the accused and that the sentence was proportionate to the nature and circumstances of the offences. The conviction and sentence were therefore affirmed.

Orders