SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0205
| ASHRAF SADDIK | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, KAYE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 September 2018 |
| DATE OF JUDGMENT: | 1 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 249 |
| JUDGMENT APPEALED FROM: | DPP v Saddik (Unreported, County Court of Victoria, 23 June 2017) (Conviction) |
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CRIMINAL LAW – Appeal against conviction – Appellant medical practitioner – Convicted of two charges of indecent assault on patient – Address by prosecutor to jury based on speculation and contrary to evidence – Attack by prosecutor on credibility of prosecution witness – No application by prosecutor to cross-examine witness – No application by defence counsel to judge for direction – Verbal admission by appellant to witness – Incriminating conduct evidence – Adequacy of judge’s directions - Substantial miscarriage of justice resulting from prosecutor’s address to jury - Whether appropriate to order acquittal in lieu of retrial - Retrial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Dann QC and Mr R Edney | Doogue & George |
| For the Respondent | Mr B Sonnett | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA:
I have read in draft the reasons of Kaye and Niall JJA. I agree with them that the appeal on ground 5 must be allowed. I wish to briefly state my own reasons for that conclusion. Otherwise, I agree with their reasons on the other grounds of appeal, and I agree with their conclusion as to the disposition of the appeal for the reasons they have given. These reasons assume knowledge of the reasons of Kaye and Niall JJA.
The prosecutor, in his final address, made the following assertions (expressly or implicitly) which had not been put to Father Abdelmalek:
(1)Father Abdelmalek had been engaged by the accused, or by a combination of the accused and Father Rizkalla, to seek to privately resolve the ‘problem’ of the offences which the accused had committed against the complainant.
(2)Father Abdelmalek was not telling the truth when he gave evidence that the accused had not told him what the ‘problem’ was.
(3)Father Abdelmalek’s evidence was motivated by bias in favour of the accused.
What the prosecutor said was unwarranted and improper, because those matters had not been put to Father Abdelmalek. The prosecutor, if he intended to make those submissions, ought to have sought leave to cross-examine Father Abdelmalek under s 38 of the Evidence Act 2008. There was a clear basis in Father Abdelmalek’s evidence in chief for that application. His evidence was unfavourable to the prosecution, and there were grounds upon which critical aspects of that evidence could have been, and should have been, directly challenged. Those grounds included the following:
(1)Father Abdelmalek maintained that he had volunteered to help solve a ‘problem’ about which he knew nothing, until the complainant told him that she had been assaulted. This might be seen as improbable.
(2)Father Abdelmalek sought to ‘correct’ the transcript of his conversation with…
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- AGLC
- Saddik v The Queen [2018] VSCA 249
- Case
- [2018] VSCA 249
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the prosecutor's address to the jury contained improper speculation and if this constituted a substantial miscarriage of justice warranting a new trial. The court also considered whether the prosecutor's attack on the credibility of a prosecution witness, without proper cross-examination, was appropriate and if the judge's directions to the jury were adequate. Furthermore, the court examined the appellant's verbal admission to the witness and the use of this as incriminating conduct evidence.
The High Court found that the prosecutor's address to the jury did indeed contain speculative content that was contrary to the evidence, and this amounted to a substantial miscarriage of justice. The court noted that the prosecutor's attack on the credibility of the witness without proper cross-examination further contributed to this miscarriage. Additionally, the court determined that the judge's directions to the jury, while adequate in some respects, were insufficient to fully mitigate the prejudicial impact of the prosecutor's conduct. Consequently, the court ordered a retrial instead of acquitting the appellant, as the evidence of the verbal admission and the credibility attack warranted a fresh consideration by a new jury.
Orders
Orders of the court
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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
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