SUPREME COURT OF VICTORIA
COURT OF APPEAL
Not Restricted
No. 126 of 1998
| THE QUEEN |
| v |
| 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…
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- AGLC
- R. v. Saffoury [1998] VSCA 36
- Case
- [1998] VSCA 36
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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