R. v. Saffoury - [1998] VSCA 36

SUPREME COURT OF VICTORIA

COURT OF APPEAL

Not Restricted

No. 126 of 1998

THE QUEEN

SULTAN SAFFOURY

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JUDGES:	WINNEKE, P., PHILLIPS and KENNY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 1998
DATE OF JUDGMENT:	26 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 36

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Criminal law - Conviction by jury of one offence but not others - Whether conviction “unsafe” - Test to be applied by appellate court.
Discharge of jury - Trial judge declining to discharge jury after remarks by prosecutor in final address said to be prejudicial - Judge preferring to make comments in charge.
Assault with intent to rape - Whether there is an “additional intent” introduced by s.31 (2) (b) Crimes Act 1958 - Applications for leave to appeal against conviction and sentence dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. D.G. Just	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P. Morrissey	Wallington-Brand

WINNEKE, P.:

In May of this year the applicant was presented for trial in the County Court on three counts alleging sexual offences against the one girl ("the complainant") on 31 December 1996. The three counts alleged were -

1.         indecent assault;
2.         rape per vaginam;
3.         assault with intent to orally rape.

The applicant was ultimately convicted only upon count 3 and was sentenced to two years' imprisonment and a minimum term of seven months was fixed.

The charges arose out of events which occurred in the City Square on New Year's Eve. The complainant, who was then 17 years of age, attended the celebrations in the square with a friend ("J"). The applicant was present as a crowd controller. There was a dispute at the trial as to the nature and extent of the relationship which developed between the two during the evening. The complainant said that the applicant, who was then aged 19, intervened to remove a person who had been pestering her and that thereafter she had struck up a friendly conversation. It was her claim that she had given the applicant no encouragement to believe that she was any more than platonically interested in him. The case made by the applicant was different. That case was that the complainant had, over a period during the evening, kissed and cuddled him, had exchanged phone numbers with him and had generally given him what can be colloquially described as the "come hither". I say "the case made" by the applicant because he had generally made a "no comment" record of interview with the police following these events and he had stood mute at his trial. The case was thus made through cross-examination of the complainant and other Crown witnesses and three witnesses called for the defence.

The indecent assault alleged in count 1 occurred, so the complainant said, at some stage before midnight when she had asked the applicant where she could find a drink of water. She said the applicant had directed her to a "Big M" van. Without warning he…

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. Saffoury

Details

AGLC: R. v. Saffoury [1998] VSCA 36
Case: [1998] VSCA 36
Decision Date: 26 August 1998

CaseChat Overview and Summary

Saffoury was charged with various sexual offences, including assault with intent to rape. The jury found him guilty of one count of indecent assault but acquitted him of the other charges. Saffoury appealed against his conviction and sentence. The appeal raised two primary issues: first, whether the conviction was "unsafe and unsatisfactory"; and second, whether the trial judge should have discharged the jury after the prosecutor made prejudicial comments during the final address. The appellate court examined whether the jury's verdict was "unsafe and unsatisfactory" by considering if the jury had been led astray by any misdirection or error of law, and whether the evidence supported the verdict. The court concluded that the jury's verdict, while unexpected, was not so contrary to the evidence as to be "unsafe and unsatisfactory".

The court also addressed the issue of whether the trial judge should have discharged the jury after the prosecutor's prejudicial comments. Saffoury argued that the prosecutor's remarks were improper and prejudiced the jury, leading to an unfair trial. The court found that the trial judge had acted appropriately by choosing to make comments in the charge to the jury, rather than discharging them, as this allowed the judge to correct any potential prejudice and ensure a fair trial. The court held that the trial judge's decision did not amount to an error of law or a miscarriage of justice. The appeal against conviction and sentence was dismissed, affirming the trial judge's decision and the jury's verdict.

Orders