SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0037
| ALEXANDER JOHN SEMAAN | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2016 0238 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ALEXANDER JOHN SEMAAN | Respondent |
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| JUDGES: | PRIEST, BEACH and HANSEN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 September 2017 |
| DATE OF JUDGMENT: | 21 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 261 |
| JUDGMENT APPEALED FROM: | R v Semaan (Unreported, Supreme Court of Victoria, Justice Beale, 6 September 2016 (Conviction), 4 November 2016 (Sentence)) |
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CRIMINAL LAW — Appeal — Conviction — Murder — Hearsay evidence — Whether statements made to police on night of offending admissible — Whether unreliable witness warning inadequate — No error — Leave to appeal refused — Evidence Act 2008 (Vic) ss 59, 62, 66.
CRIMINAL LAW — Appeal — Sentence — Crown appeal — Murder — Offender sentenced to 22 years’ imprisonment with non-parole period 18 years after trial — Whether manifestly inadequate — Cold-blooded killing — No remorse — Appeal allowed — Resentenced to 28 years’ imprisonment with non-parole period 24 years — Post-offence conduct — Whether uncharged attempts to pervert course of justice constituted aggravating circumstances — R v De Simoni (1981) 147 CLR 383; R v Newman and Turnbull [1997] 1 VR 146; DPP v England [1999] 2 VR 258 discussed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant/Respondent | Mr J F Desmond and Mr R F Edney | Valos Black & Associates |
| For the Director of Public Prosecutions | Mr C B Boyce SC and Mr J B Lewis | John Cain, Solicitor for Public Prosecutions |
PRIEST JA:
BEACH JA:
HANSEN JA:
Introduction
In late 2014, the applicant was living in a bungalow at the rear of his mother’s home in East Brunswick. It was in the rear courtyard of that home that he shot Michael Bekhazi dead, leading to his conviction for Bekhazi’s murder. The circumstances of the murder were as follows.
At about 9.00 o’clock in the evening of 1 December 2014, the applicant was sitting in his bungalow — with a gun in his lap — holding an ‘ice’ pipe. A relative, Tony Kanaan, came and stood in the open doorway. The applicant said to Kanaan, ‘I want to kill everybody’. When Kanaan asked, ‘Who do you want to kill?’, the applicant replied, ‘Everybody’.
Holding the gun, the applicant then walked out into the courtyard. Michael Bekhazi, a friend, was there looking through a bag. Whilst Kanaan looked on, the applicant put the gun to the back of Bekhazi’s head. As Kanaan tried to reason with the applicant, the applicant moved away from Bekhazi over to the back gate where he could see a neighbour putting out her bins. He pointed the gun at her. Once more, Kanaan attempted to reason with the applicant.
The applicant walked back to Bekhazi, who was standing up. The applicant pointed the gun at Bekhazi’s forehead. Bekhazi did not attempt to resist, and simply lowered his head. The applicant fired.
Bekhazi, fatally wounded, collapsed. Members…
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- AGLC
- Semaan v The Queen [2017] VSCA 261
- Case
- [2017] VSCA 261
- Decision Date
CaseChat Overview and Summary
The court found that the statements made by the appellant to the police on the night of the offence were admissible under the provisions of the Evidence Act 2008 (Vic). The court concluded that the hearsay exception in section 59 of the Act applied, and the probative value of the evidence outweighed any prejudicial effect. Regarding the reliability warning, the court held that the warning provided to the jury was sufficient under section 62 of the Act, and there was no error in the trial judge's approach. Consequently, the conviction was upheld.
In relation to the sentence, the Court of Appeal agreed with the Crown that the original sentence of 22 years' imprisonment with a non-parole period of 18 years was manifestly inadequate. The court considered the cold-blooded nature of the killing and the appellant's lack of remorse. The court also found that the appellant's post-offence conduct, including attempts to pervert the course of justice, constituted an aggravating factor. Following the principles outlined in R v De Simoni, R v Newman and Turnbull, and DPP v England, the sentence was increased to 28 years' imprisonment with a non-parole period of 24 years. Leave to appeal to the High Court was refused.
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
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Ratio Decidendi
Legal Principle Established
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