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Semaan v The Queen

Semaan v The Queen

Case [2017] VSCA 261 21 September 2017

Admissibility of Evidence

Unreliable Witness Warning

Criminal Law

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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…

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 Semaan v The Queen

Details

AGLC: Semaan v The Queen [2017] VSCA 261
Case: [2017] VSCA 261
Decision Date: 21 September 2017

CaseChat Overview and Summary

The appeal in Semaan v The Queen involved a conviction for murder and the subsequent sentence imposed. The appellant, Semaan, was convicted of the murder of his partner and appealed both the conviction and the sentence. The case was heard in the Court of Appeal, with the Crown also appealing the sentence as being manifestly inadequate. The primary issues before the court were the admissibility of certain hearsay evidence, the adequacy of the warning given to the jury regarding the reliability of a witness, and the appropriateness of the sentence imposed.

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