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Saddik v The Queen

Saddik v The Queen

Case [2018] VSCA 249 1 October 2018

Appeal

Breach of Contract

Admissibility of Evidence

Adverse Possession

Criminal Law

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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…

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 Saddik v The Queen

Details

AGLC: Saddik v The Queen [2018] VSCA 249
Case: [2018] VSCA 249
Decision Date: 1 October 2018

CaseChat Overview and Summary

Saddik v The Queen is an appeal against conviction brought by a medical practitioner convicted of two charges of indecent assault on a patient. The matter was heard in the High Court of Australia, where the appellant sought to challenge his conviction and sentence. The crux of the appeal lies in the conduct of the prosecutor during the trial, particularly in their address to the jury, which the appellant contends was based on speculation and contrary to the evidence presented. Additionally, the appeal questions the prosecutor's attack on the credibility of a prosecution witness without cross-examination, and whether the judge's directions to the jury were adequate in mitigating any prejudicial impact.

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