R v Mohammadi

Case [2011] SASCFC 154

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MOHAMMADI

[2011] SASCFC 154

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)

16 December 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

Appellant convicted by jury verdict of one count each of aggravated recklessly causing serious harm and threatening a person involved in a criminal investigation –appellant called alibi evidence at trial - appellant alleges trial Judge interfered with conduct of trial such that the defendant did not receive a fair trial – whether trial Judge gave sufficient directions to jury regarding alibi - whether level of judicial involvement in the trial amounted to material interference giving rise to an unfair trial - whether errors in summing up either separately or collectively gave rise to any risk of a miscarriage of justice. 

Held: Appeal allowed – verdicts of guilty are set aside and matter remitted for retrial.

David J:  Judge did not adequately direct the jury with respect to the defence case insofar as an alibi was raised – the Judge failed to direct the jury that even if the alibi evidence was rejected the prosecution still bore the onus of proving its case - trial Judge's interventions during the evidence of the alibi witness tended to indicate the Judge's view that the evidence was not to be believed - a combination of those factors led to an unfair trial in relation to the count of aggravated recklessly causing serious harm - unfairness flows through to the count of threatening a person involved in a criminal investigation.

Gray and Sulan JJ: the interventions of the trial Judge gave rise to a real risk that a miscarriage of justice may have occurred – errors in the Judge’s interventions compounded the risk of a miscarriage of justice. 

R v Macbeth [2008] SASC 71; R v Esposito (1998) 45 NSWLR 442, discussed.
Ratten v The Queen (1974) 131 CLR 510; R v Mawson [1967] VR 205; Galea v Galea (1990) 19 NSWLR 263; E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146; R v Yuill (1994) 34 NSWLR 179; Whitehorn v The Queen (1983) 152 CLR 657; R v R (1989) 18 NSWLR 74, considered.

R v MOHAMMADI
[2011] SASCFC 154

Court of Criminal Appeal         Gray, Sulan and David JJ

GRAY and SULAN JJ.

  1. This is an appeal by Morteza Mohammadi against conviction.

  2. The defendant was convicted following a trial in the District Court by jury verdict of the offences of aggravated recklessly causing serious harm and of threatening a person involved in a criminal investigation.  He was acquitted on a further charge of theft.  The incidents giving rise to the offences occurred on 30 and 31 May…

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R v Mohammadi [2011] SASCFC 154
Case
[2011] SASCFC 154
Decision Date

CaseChat Overview and Summary

The appeal concerned Morteza Mohammadi, who had been convicted by a jury of aggravated recklessly causing serious harm and threatening a person involved in a criminal investigation. The appellant alleged that the trial judge's conduct during the trial, including interventions during the evidence of an alibi witness and the adequacy of directions to the jury regarding the alibi defence, resulted in an unfair trial. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Gray, Sulan, and David JJ.

The central legal issues before the Full Court were whether the trial judge's interventions in the questioning of witnesses amounted to material interference with the conduct of the trial, thereby giving rise to an unfair trial. Additionally, the court considered whether the judge's directions to the jury concerning the alibi defence were sufficient, particularly regarding the prosecution's onus of proof even if the alibi was rejected. The court also had to determine if any errors in the summing up, either individually or collectively, created a risk of a miscarriage of justice.

The Full Court, in allowing the appeal, found that the trial judge had not adequately directed the jury on the alibi defence, failing to instruct them that the prosecution retained the burden of proof even if the alibi evidence was disbelieved. Furthermore, the judge's interventions during the testimony of the alibi witness were perceived as indicating a view that the evidence was not credible. A majority of the court, including David J, concluded that this combination of factors led to an unfair trial concerning the charge of aggravated recklessly causing serious harm, and this unfairness extended to the charge of threatening a person involved in a criminal investigation. Gray and Sulan JJ agreed that the judge's interventions created a real risk of a miscarriage of justice, which was compounded by other errors.

Consequently, the Full Court allowed the appeal, set aside the verdicts of guilty, and remitted the matter for a retrial.

Orders

Orders of the court

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Background

Background to the litigation

He now appeals against both convictions. The appeal concerns a number of complaints regarding the trial Judge’s involvement in the questioning of witnesses during the trial and certain aspects of his directions to the jury.Background facts I set out the information in full. MORTEZA MOHAMMADIis charged with the following OffencesFirst CountStatement of OffenceAggravated Recklessly Causing Serious Harm. (Section 23(3) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceMorteza Mohammadi on the 30th day of May 2009 at Gepps Cross, caused serious harm to Abdul Wahid Mahmoodi, being reckless as to whether such harm was caused.It is further alleged that Morteza Mohammadi committed the offence whilst in company with another person.Second CountStatement of OffenceTheft. (Section 134(1) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceMorteza Mohammadi on the 30th day of May 2009 at Gepps Cross, dishonestly dealt with property, namely money and keys, without the consent of Abdul Wahid Mahmoodi, the owner of that property, intending to permanently deprive him of that property or make a serious encroachment on his proprietary rights.Third CountStatement of OffenceThreatening a Person Involved in a Criminal Investigation. (Section 248(1) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceMorteza Mohammadi on the 31st day of May 2009 at Adelaide, threatened to cause or procure physical injury to Abdul Wahid Mahmoodi, a person who was or might be involved in a criminal investigation, with the intention of inducing him to act in a way that might influence the outcome of the investigation. As noted, the jury found the appellant guilty on Counts 1 and 3 but not guilty of Count 2. The appellant and the complainant were both members of the Afghan community in South Australia. The complainant gave evidence at the trial that in the two years prior to the events which were the basis of the charge, they had seen each other at parties and gatherings of the Afghan community. The complainant said that on the night of 30 May 2009 at approximately 7.30pm to 7.45pm he played volleyball at Wingfield High School and, at that time, left alone in his car to travel to his home at Ingle Farm. Whilst leaving the school, he saw the appellant travelling as a passenger in another car and waved to say hello. However, the appellant did not wave back. The complainant gave evidence that he drove along Grand Junction Road and stopped at the intersection of Grand Junction Road and Main North Road. Whilst stationary at a traffic light, the appellant approached the front passenger side of the complainant’s vehicle and asked for a lift to Pooraka. The complainant did not see where the appellant had come from. The complainant gave evidence that he obliged the appellant and they drove along Main North Road. At one stage, the appellant asked the complainant to pull his car over so he could relieve himself. He did so whilst on Main North Road and the appellant got out of the car leaving the door open and walked towards a tree on the side of the road. Whilst this was happening, the complainant said that he saw a further vehicle in his rear vision mirror pull up and stop behind him. It was the same car in which he had seen the appellant whilst he was leaving Enfield High School. A second man came to the driver’s side of the complainant’s car and said, “Get out of the car, the other man wants to talk to you”. The appellant then returned and got into the passenger side of the car and started swearing at the complainant saying, “Why are you not giving work to Hodgy”. The appellant then started punching the complainant to the left side of his face. The second man opened the driver’s door and also started punching the appellant in the area of the face, head, shoulder and neck. The second man was calling him names whilst doing so. Both men said to the complainant that they were trying to kill him.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

We have had the advantage of considering the reasons to be published by David J. He has referred to some of the evidence which has caused us to allow the appeal. We agree that the Judge did not adequately direct the jury with respect to the defence case insofar as an alibi was raised. Conclusion For these reasons we would set aside the verdicts of guilty and remit the matter for a retrial. DAVID J: The appellant was convicted by verdicts of a jury of one count of aggravated recklessly causing serious harm, such offence being aggravated because he was in the company of another person, and one count of threatening a person involved in a criminal investigation. At the same trial he was acquitted of a third charge of theft. He now appeals against both convictions. The appeal concerns a number of complaints regarding the trial Judge’s involvement in the questioning of witnesses during the trial and certain aspects of his directions to the jury.Background facts I set out the information in full. MORTEZA MOHAMMADIis charged with the following OffencesFirst CountStatement of OffenceAggravated Recklessly Causing Serious Harm. (Section 23(3) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceMorteza Mohammadi on the 30th day of May 2009 at Gepps Cross, caused serious harm to Abdul Wahid Mahmoodi, being reckless as to whether such harm was caused.It is further alleged that Morteza Mohammadi committed the offence whilst in company with another person.Second CountStatement of OffenceTheft. (Section 134(1) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceMorteza Mohammadi on the 30th day of May 2009 at Gepps Cross, dishonestly dealt with property, namely money and keys, without the consent of Abdul Wahid Mahmoodi, the owner of that property, intending to permanently deprive him of that property or make a serious encroachment on his proprietary rights.Third CountStatement of OffenceThreatening a Person Involved in a Criminal Investigation. (Section 248(1) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceMorteza Mohammadi on the 31st day of May 2009 at Adelaide, threatened to cause or procure physical injury to Abdul Wahid Mahmoodi, a person who was or might be involved in a criminal investigation, with the intention of inducing him to act in a way that might influence the outcome of the investigation. As noted, the jury found the appellant guilty on Counts 1 and 3 but not guilty of Count 2. The appellant and the complainant were both members of the Afghan community in South Australia. The complainant gave evidence at the trial that in the two years prior to the events which were the basis of the charge, they had seen each other at parties and gatherings of the Afghan community. The complainant said that on the night of 30 May 2009 at approximately 7.30pm to 7.45pm he played volleyball at Wingfield High School and, at that time, left alone in his car to travel to his home at Ingle Farm. Whilst leaving the school, he saw the appellant travelling as a passenger in another car and waved to say hello. However, the appellant did not wave back.

Ratio Decidendi

Legal Principle Established

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