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R v Minaoui

R v Minaoui

Case [2004] VSCA 126 4 August 2004

Criminal Liability

Evidence Law

Admissibility of Evidence

Indecent Assault

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 97 of 2002

THE QUEEN
	v.
FAROUK MINAOUI

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JUDGES:	BATT, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 June 2004
DATE OF JUDGMENT:	4 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 126

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Criminal law – Evidence – Assault with intent to rape – Indecent assault – Directions to jury – Dangerous or unreliable witness warning refused as to drug affected complainant – Tactical decision by defence not to highlight effect of drugs on complainant – Whether duty on trial judge to give direction – Dangerous or unreliable witness direction given as to witness who was in part favourable to defence – Opposition to the direction by defence counsel not determinative - Whether witness an accomplice – Tender of toxicology report under s.149A of Evidence Act 1958 – No explanation as to terms and meaning of toxicology report – Crimes Act 1958, ss.39,40.

Criminal law – Sentence – Assault with intent to rape – Sentence of four years – Indecent assault – Sentence of one year, concurrent – Total effective sentence of four years with non-parole period of one year nine months within range.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. O.P. Holdenson, Q.C. Mr. D.A. Trapnell	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. G.F. Meredith	Victoria Legal Aid

BATT, J.A.:

I have had the benefit of reading in draft the reasons for judgment of the other members of the Court.

I agree with Buchanan, J.A. that, for the reasons given by him, the first of the two grounds pursued (ground 3) is not made out. I would add that, particularly having regard to the combination of drugs ingested by the complainant and evidenced by the analysis of her urine sample[1], any direction relating to drugs would by reason of the absence of expert evidence have had to be devoid of content and so would have been pointless.
[1]I take the date on the bag containing the urine sample referred to by the analyst not to be the date on which the sample was provided but the date on which the bag was labelled by one Jones (MKJ).

As to the second ground pursued (ground 4), the position is, perhaps, more debateable. In the end, however, I have come to the conclusion that this ground, too, is not made out. Save that I do not find it necessary to determine whether Zoudi was an accomplice, I agree in the reasons of Buchanan, J.A.

Accordingly, I would dismiss the application for leave to appeal against conviction.

For the reasons given by Buchanan, J.A. I would also dismiss the application for leave to appeal against sentence.

BUCHANAN, J.A.:

I have had the advantage of reading the draft reasons prepared by Eames, J.A. I gratefully adopt his account of the facts. Unfortunately, I am unable to agree in the conclusions which his Honour has reached as to the two grounds of the application which were pursued…

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 Minaoui

Details

AGLC: R v Minaoui [2004] VSCA 126
Case: [2004] VSCA 126
Decision Date: 4 August 2004

CaseChat Overview and Summary

The case of R v Minaoui involved a defendant who was convicted of assault with intent to rape and indecent assault. The matter was heard in the Supreme Court of Victoria, which was tasked with determining several legal issues related to the case. The primary concerns were whether the trial judge was obliged to provide certain directions to the jury regarding the reliability of witnesses, the admissibility of a toxicology report, and the appropriateness of the sentence imposed.

The court needed to decide if the trial judge was required to warn the jury about the potential unreliability of a witness who was affected by drugs at the time of the incident. The defence chose not to emphasise the impact of the drugs on the complainant, and the court had to consider whether this tactical decision by the defence influenced the judge's duty to provide such a direction. Additionally, the court needed to determine if another witness, who was partly favourable to the defence, could be considered an accomplice, thereby warranting a direction to the jury about the witness's reliability. The court also had to examine the trial judge's decision to admit a toxicology report under section 149A of the Evidence Act 1958, without providing an explanation about the report's terms and significance.

The Supreme Court of Victoria found that the trial judge was not obligated to give a dangerous or unreliable witness direction regarding the drug-affected complainant, as the defence had chosen not to highlight the impact of the drugs. The court also ruled that the opposition by defence counsel to the direction concerning the partly favourable witness did not preclude the judge from giving the direction. The court further held that the tender of the toxicology report was appropriate, despite the absence of an explanation about its terms and meaning. Regarding the sentence, the court concluded that the total effective sentence of four years, with a non-parole period of one year and nine months, was within the appropriate range for the crimes committed.

Orders