R v Saad

Case [2005] VSCA 249 24 October 2005

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 328 of 2003

THE QUEEN
	v.
MARY SAAD

No. 331 of 2003

THE QUEEN
	v.
HANY ADLIY SAAD

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JUDGES:	CHERNOV and NETTLE, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6-7 September 2005
DATE OF JUDGMENT:	24 October 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 249

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CRIMINAL LAW – Conviction – Murder – Killing of husband by wife and deceased’s brother – Whether verdict unsafe and unsatisfactory – Whether jury ought to have entertained a reasonable doubt as to guilt – Whether judge erred in failing to leave to jury an alternative lesser offence of assist offender – Evidence – Circumstantial evidence – Whether intermediate conclusion of fact needing to be proved beyond reasonable doubt – Whether one offender’s post offence acts and utterances admissible against co-offender – Crimes Act 1958, s.325.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. O.P. Holdenson QC with Mr. C.B. Boyce	K. Robertson, Solicitor for Public Prosecutions
For the Applicant Hany Adliy Saad	Ms K.E Judd	Victoria Legal Aid
For the Applicant Mary Saad	Mr. M.J. Croucher	Warren & Associates

CHERNOV, J.A.:

I have had the advantage of reading the draft reasons for judgment of Nettle, J.A. and agree that, for the reasons his Honour gives, the applications for leave to amend the grounds of appeal should be refused and that the applications for leave to appeal against conviction be dismissed. I would add only that, notwithstanding his Honour doubts, I think there was no realistic prospect of the jury accepting that Mary Saad was involved only as an accessory after the fact as was contended on her behalf at the appeal. After all, it was she who obtained the drugs that were used to sedate the deceased and it is most likely that she had administered them to him through the food and drink that he consumed at his home not long before his death. There was, as Nettle, J.A. explains, no evidence that Mary Saad gave the drugs to the deceased but, given that she obtained them over a period and later tried to have Dr Zaky withhold evidence of this from the authorities, and given that she was best placed to mix the drugs in the deceased’s food and drink, it is almost inevitable that the jury would have concluded that she administered the drugs as part of the conspiracy with her co-accused to kill her husband. But even if she was not directly responsible for administering the drugs to the deceased, she must have known at the time she set off with him to the hospital that he had been drugged, most likely with the very drugs that she had obtained, and that he was sedated to such an extent that he could not have offered any resistance to whatever steps Hany Saad was to take to kill him. Having regard to these factors and to the evidence of her conduct subsequent to the deceased’s death, which is set…

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 Saad

Details

AGLC: R v Saad [2005] VSCA 249
Case: [2005] VSCA 249
Decision Date: 24 October 2005

CaseChat Overview and Summary

The case before the court involved the conviction of two individuals, Saad and his sister, for the murder of Saad’s husband. The deceased was found dead in his home, and the accused claimed that the death was accidental. The siblings were subsequently tried and convicted, with the court finding that they had conspired to murder the deceased, with the sister acting as the principal offender. Both Saad and his sister appealed against their convictions, arguing that the verdict was unsafe and unsatisfactory and that the jury should have been left with a reasonable doubt as to their guilt. Additionally, they contended that the trial judge had erred in not allowing the jury to consider the alternative lesser offence of assisting an offender.

The central legal issues before the court were whether the verdict was indeed unsafe and unsatisfactory, whether the jury should have entertained a reasonable doubt as to the guilt of the accused, and whether the trial judge erred in not allowing the jury to consider the lesser offence of assisting an offender. Furthermore, the court had to consider the admissibility of one offender’s post-offence acts and utterances against the other co-offender, and whether intermediate conclusions of fact needed to be proved beyond reasonable doubt.

In examining the evidence, the court found that while the case was circumstantial, the evidence was sufficient to support the jury’s conclusion that the accused were guilty of the murder. The court further held that the trial judge did not err in not allowing the jury to consider the lesser offence, as the evidence did not support such a conclusion. Regarding the admissibility of one offender’s post-offence acts and utterances against the other, the court found that such evidence was admissible under section 325 of the Crimes Act 1958. The court also held that intermediate conclusions of fact did not need to be proved beyond reasonable doubt.

Ultimately, the court dismissed the appeals and upheld the convictions of both Saad and his sister. The court found that the evidence was sufficient to support the jury’s conclusion that the accused were guilty of the murder, and that the trial judge did not err in not allowing the jury to consider the lesser offence. Additionally, the court found that the evidence of one offender’s post-offence acts and utterances was admissible against the other co-offender, and that intermediate conclusions of fact did not need to be proved beyond reasonable doubt. The convictions of both Saad and her sister were therefore upheld.

Orders