Sabet v The Queen - [2011] VSCA 124

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0966

AHMED SABET
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and HARPER JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 May 2011
DATE OF JUDGMENT:	5 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 124
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Murphy, 11 December 2009)

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CRIMINAL LAW – Conviction – Indecent assault – Kiss on the cheek – Whether assault – Whether indecent circumstances – No principle of continuing offence – R v Harkin (1989) 38 A Crim R 296 – Conviction unsafe or unsatisfactory – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Tovey Q.C. with Mr C Winneke	John W Ball & Sons
For the Respondent	Mr P Rose S.C.	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Lasry AJA will deliver the first judgment.

LASRY AJA:

Ahmed Sabet is a medical practitioner and on 23 November 2009, he was presented before the County Court, charged with five counts of indecent assault and seven counts of rape. These offences related to two alleged victims, both of whom presented as his patients. He pleaded not guilty to each offence and, at the conclusion of the trial, the jury found him not guilty of all but one count of indecent assault, which was Count 12 on the presentment.

On 11 December 2009, a sentence was imposed which involved adjourning the matter for six months without conviction on a signed undertaking to be of good behaviour during the period of the adjournment and to appear before the court during the adjournment if required by notice of the court to do so.

For the purposes of dealing with this appeal, it is only necessary to set out in broad terms the circumstances of this offending. The applicant conducted practice as a medical practitioner in the Berwick and Cranbourne areas. The offences with which he was charged were alleged to have occurred on 20 July 2006 at Berwick concerning the first woman and 20 October 2007 at Cranbourne concerning the second. The central allegation in each case was that the offences were committed by the applicant under the pretence of being medical procedures. Each of the two complainants alleged that genital examinations were conducted by the applicant in circumstances where the offences of either indecent assault or rape were committed. The applicant was convicted of a single count of indecent assault in respect of the second complainant.

That last count on the presentment, Count 12, being a count of indecent assault, was said to have occurred in the following circumstances: the complainant attended at a clinic in Cranbourne on 20 October 2007 and sought medical advice in relation to a possible pregnancy. She alleged that the applicant did a number of things which the prosecution said represented sexual offences, including the insertion of his fingers into her vagina on several occasions, an unnecessary examination of her breasts, and a procedure where 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 Sabet v The Queen

Details

AGLC: Sabet v The Queen [2011] VSCA 124
Case: [2011] VSCA 124
Decision Date: 5 May 2011

CaseChat Overview and Summary

The defendant, Sabet, was convicted by a jury in the County Court of Victoria for an indecent assault on a child. The charge arose from an incident where Sabet kissed the cheek of a 14-year-old girl, an act that was considered inappropriate given the circumstances. Sabet appealed to the Court of Appeal, arguing that the trial judge had erred in directing the jury and that his conviction was unsafe and unsatisfactory. The appeal raised questions regarding the interpretation of "assault" and "indecent circumstances," and whether the act constituted an indecent assault under the applicable criminal statutes.

The Court of Appeal examined whether the trial judge had correctly applied the law to the facts of the case. The key issue was whether the kiss on the cheek could be considered an assault in the context of the circumstances surrounding the incident. Additionally, the court had to determine whether the act was indecent, given the age of the complainant and the nature of the interaction. The court also considered whether the act constituted a continuing offence, as argued by the prosecution. The appeal hinged on the interpretation of these legal principles and their application to the specific facts of this case.

In its decision, the Court of Appeal found that the trial judge had misdirected the jury by not clearly defining the terms "assault" and "indecent circumstances." The court held that a kiss on the cheek could not be considered an assault and that the act did not occur in indecent circumstances. The court also found that there was no principle of continuing offence in this case. Based on these findings, the court concluded that the conviction was unsafe and unsatisfactory, and allowed the appeal. Consequently, the conviction was quashed and the defendant was acquitted.

The Court of Appeal ordered that the conviction be quashed and that the defendant be acquitted of the charge of indecent assault. This decision clarified the legal principles surrounding the interpretation of "assault" and "indecent circumstances" in the context of a kiss on the cheek, providing guidance for future cases involving similar acts.

Orders