R v Sharif and Ors (Ruling No 1) - [2019] VSC 680

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0033
S ECR 2019 0036
S ECR 2019 0034
S ECR 2019 0035

DIRECTOR OF PUBLIC PROSECUTIONS
v
AHMED AWALOW SHARIF ABDIFATAH SHARIF DAWUUD ABDI SALAH ABUKAR	Accused

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2019
DATE OF RULING:	10 October 2019
CASE MAY BE CITED AS:	R v Sharif & Ors (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2019] VSC 680

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CRIMINAL LAW – Murder and connected assault charges - Evidence – Earlier attempted robbery by accused preceding final events – Whether relevant – O’Leary v The King considered - Whether probative value outweighed by danger of unfair prejudice – Evidence Act 2008, s 55(1), s 137.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Hutton with Ms D Karamicov	Mr J Cain, Solicitor for Public Prosecutions
For the Accused Ahmed Sharif	Mr P Doyle	Papa Hughes Lawyers
For the Accused Abdifatah Sharif	Mr S Bayles	Stary Norton Halphen
For the Accused Abdi	Mr C Pearson	Tony Hannebery Lawyers
For the Accused Abukar	Mr S Kenny	Emma Turnbull Lawyers

HIS HONOUR:

Background

The four accused face charges in relation to events which took place in Castley Crescent, Braybrook, at about 9:30pm on 9 December 2017. A man named Paul Duncanson was struck by a Hyundai motor vehicle driven by the accused Ahmed Sharif. He later died in the Royal Melbourne Hospital. Ahmed Sharif is charged with his murder. Shortly after Paul Duncanson was struck by the car, his brother Sean was allegedly set upon by the other accused. Serious injury was inflicted upon him. Charges 2 to 4 are laid in respect of that attack. There is some evidence that Paul Duncanson may also have been further attacked after having been run over by the vehicle. There are no charges in relation to that.

The events in Castley Crescent were preceded by an earlier incident in the front yard of a property at 237 Ballarat Road, Braybrook. That event was relevantly described by Sally Roach in her second statement, as follows:

I would say about 10 minutes before I detailed the event when I saw Paul outside my front door I had one of the African guys come to my house alone. At the time he knocked on the door. I was home alone inside the house... I opened the door and saw an African male I know as Dawad. He is also known as Deck or Dextor.[1] When Dawad came on Saturday 9 December 2017, he asked me for a cigarette and I told him I did not have any… I ended up shutting the door on him and kept (sic) on banging on it until I opened the front door again. He kept asking me for a cigarette and I kept telling him I didn’t have any…Dawad said, ‘Come on Sally!’. He seemed like he had been drinking or was under the influence of something,…

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.

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Details

Case: [2019] VSC 680
Decision Date: 10 October 2019

CaseChat Overview and Summary

The defendants, Sharif and others, faced charges of murder and related assault in the criminal court. The case revolved around a sequence of events culminating in a fatal incident, with an earlier attempted robbery by the accused preceding the final tragic events. The court was tasked with determining the admissibility of evidence related to the attempted robbery in the context of the current charges. This issue was pivotal as it could potentially sway the jury's perception and was examined under the provisions of the Evidence Act 2008.

The court had to navigate the fine balance between the probative value of the evidence and the potential for unfair prejudice to the defendants. The consideration of whether the probative value outweighed the prejudicial effect was central, guided by sections 55(1) and 137 of the Evidence Act 2008. The court considered the decision in O'Leary v The King as a precedent, which underscored the importance of ensuring that evidence, while relevant, does not unfairly prejudice the defendants' right to a fair trial.

In reaching its decision, the court meticulously weighed the relevance of the attempted robbery against the potential for prejudice. The court concluded that the probative value of the evidence concerning the earlier attempted robbery was significant, but it was outweighed by the risk of unfair prejudice. Consequently, the evidence was deemed inadmissible under section 137 of the Evidence Act 2008, as its prejudicial effect substantially outweighed its probative value. This ruling underscored the court's commitment to upholding the integrity of the trial process.

Orders