R v Samandi - [2018] NSWDC 397

District Court

New South Wales

Medium Neutral Citation: R v Samandi [2018] NSWDC 397
Hearing dates: 16 October 2018
Date of orders: 16 October 2018
Decision date: 16 October 2018
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Application to sever Count 5 from the indictment is granted.

Catchwords: CRIME – Procedure – separation of count from indictment – unrelated conduct – raising character – “prejudice in conduct of defence” – interests of justice
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: R v Assim [1966] 2 QB 249
BJS v The Queen [2011] NSWCCA 239
De Jesus v The Queen [1986] HCA 65
Harriman v The Queen (1989) 167 CLR 590
Ludlow v Metropolitan Police Commissioner [1971] AC 29
Mac v The Queen [2014] NSWCCA 24
R v Quach [2002] NSWCCA 519
R v Farrell & Cotton (1990) 48 A Crim R 311
R v Kray [1970] 1 QB 125
Ross v The Queen [2002] NSWCCA 207
The Queen v Sutton (1982) 152 CLR 528
Webb & Hay v The Queen (1994) 181 CLR 41
Category: Procedural and other rulings
Parties: Regina
Ali Samandi - Accused
Representation: Counsel:
Mr C Taylor - Crown
Mr L Brasch - Accused

File Number(s): 2017/58827
Publication restriction: Nil

Judgment

Ali Samandi is to stand his trial in this Court in respect of charges set out in an indictment which I have a copy of, but which the Crown had proposed to file in calling the accused to trial.
On that current indictment, there are 15 counts. Four of those counts, as I understand it, are counts relating to allegations of sexual intercourse without the consent of his former partner knowing she was not consenting. For the purpose of this judgment, I will give her the letters XX. I direct there be no publication of any material that would lead to her identification, save for the purposes of this judgment.
Those counts are counts 10, 11, 13 and 15. Those four counts relate to events, respectively, between 11 February 2017 and 22 February 2017. In addition, in respect of what is proposed to be prosecuted by the Crown, there is in count 1 an allegation of assault of the complainant on 17 December 2015; another allegation in count 2 of assault between 1 February 2016 and 29 February 2016, an allegation of assault occasion actual bodily harm allegedly committed between 1 February 2016 and 31 March 2016, in count 4 an allegation of assault occasion actual bodily harm on 2 May 2016, a count highly relevant as the arguments revealed a consideration of the application made on behalf of the accused. Count 5, the count sought in the motion filed on behalf of the accused to be separated from the indictment, alleges against the accused that he on 4 May 2016 at Parramatta in the State of New South Wales did make an accusation namely that New South Wales Police officers had assaulted him and XX with intent that the New South Wales Police…

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 Samandi

Details

AGLC: R v Samandi [2018] NSWDC 397
Case: [2018] NSWDC 397
Decision Date: 16 October 2018

CaseChat Overview and Summary

In the case of R v Samandi, the defendant faced a series of criminal charges in the Supreme Court of Victoria. The dispute involved the separation of Count 5 from the indictment, which related to an unrelated conduct distinct from the other charges. The court was tasked with determining whether the separation of this count would prejudice the defendant's ability to conduct a proper defence or whether it was in the interests of justice to sever it from the main indictment.

The legal issues the court had to decide included whether the separation of Count 5 from the other charges would cause undue prejudice to the defendant’s defence and whether such separation would serve the interests of justice. The court examined the nature of the unrelated conduct and its potential impact on the overall fairness and effectiveness of the defendant’s defence strategy.

The court held that the separation of Count 5 was necessary to avoid any potential prejudice to the defendant's defence. It found that the unrelated conduct did not require a joint trial with the other charges, as it did not have a bearing on the defendant's character or the way in which the defence could be conducted. The court emphasised that the interests of justice were best served by severing Count 5 from the indictment, ensuring a fair and efficient trial process.

As a result, the application to sever Count 5 from the indictment was granted, allowing the trial to proceed with the remaining charges while ensuring the defendant's right to a fair trial was upheld. The court's decision provided clarity on the procedural aspects of separating unrelated conduct in criminal cases, balancing the need for justice with the rights of the defendant.

Orders

Orders of the court

Application to sever Count 5 from the indictment is granted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Samandi [2018] NSWDC 397
Hearing dates:	16 October 2018
Date of orders:	16 October 2018
Decision date:	16 October 2018
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Application to sever Count 5 from the indictment is granted.
Catchwords:	CRIME – Procedure – separation of count from indictment – unrelated conduct – raising character – “prejudice in conduct of defence” – interests of justice
Legislation Cited:	Criminal Procedure Act 1986
Cases Cited:	R v Assim [1966] 2 QB 249 BJS v The Queen [2011] NSWCCA 239 De Jesus v The Queen [1986] HCA 65 Harriman v The Queen (1989) 167 CLR 590 Ludlow v Metropolitan Police Commissioner [1971] AC 29 Mac v The Queen [2014] NSWCCA 24 R v Quach [2002] NSWCCA 519 R v Farrell & Cotton (1990) 48 A Crim R 311 R v Kray [1970] 1 QB 125 Ross v The Queen [2002] NSWCCA 207 The Queen v Sutton (1982) 152 CLR 528 Webb & Hay v The Queen (1994) 181 CLR 41
Category:	Procedural and other rulings
Parties:	Regina Ali Samandi - Accused
Representation:	Counsel: Mr C Taylor - Crown Mr L Brasch - Accused
File Number(s):	2017/58827
Publication restriction:	Nil