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Semaan v The Queen

Semaan v The Queen

Case [2013] VSCA 134 3 June 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0215

BAKHUS SEMAAN
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN, ASHLEY and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 May 2013
DATE OF JUDGMENT:	3 June 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 134
JUDGMENT APPEALED FROM:	The Queen v Semaan (Unreported, County Court of Victoria, Judge Smallwood, Date of Conviction, 3 September 2012)

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CRIMINAL LAW – Appeal – Conviction – Appellant convicted of one charge of dangerous driving causing death and five charges of dangerous driving causing serious injury – Whether trial judge erred in admitting the earlier driving of the accused – Whether trial judge erred in directions to the jury concerning the purpose to which the jury might use the evidence of the appellant’s earlier driving – Appeal allowed – Convictions quashed and retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC	David Barrese & Associates
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Priest JA.

ASHLEY JA

I agree in the reasons of Priest JA, and with the order which he proposes.

PRIEST JA:

Introduction

By leave granted 11 April 2013, the appellant appeals against convictions following trial in the County Court in which the appellant was found guilty by the jury of one charge of dangerous driving causing death (charge 5), and five charges of dangerous driving causing serious injury (charges 7, 9, 11, 13 and 15).

In my opinion, for the reasons that follow, the appeal should be allowed and the convictions quashed. I would order a retrial.

Convictions and grounds of appeal

The charges on the Indictment related to two separate occasions of driving. Charges 1 to 3 related to driving at Mount Hotham ‘between the 29^th day of June 2010 and the 30^th day of June 2010’. Each of the charges upon which the appellant was convicted related to driving at Cobungra on ‘the 2^nd day of July 2010’.

At the end of the prosecution case the trial judge entered verdicts of not guilty[1] on three counts of reckless conduct endangering a person[2] (charges 1, 2

and 3). The jury found the appellant not guilty of one charge of culpable driving[3] (charge 4), but guilty of the lesser alternative charge of dangerous driving causing death[4] (charge 5). He was also found not guilty on five charges of negligently causing serious injury[5] (charges 6, 8, 10, 12 and 14), but guilty of the lesser alternatives of dangerous driving causing serious injury[6] (charges 7, 9, 11, 13 and 15).

[1]Criminal Procedure Act 2009, s 241.

[2]Crimes Act 1958, s 23.

[3]Crimes Act 1958, s 318.

[4]Crimes Act 1958, s 319(1).

[5]Crimes Act 1958, s 24.

[6]Crimes Act 1958, s 319(1A).

There are two grounds of appeal. By the first it is contended that the trial judge ‘erred in admitting the earlier driving of the accused’;…

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 [2013] VSCA 134
Case: [2013] VSCA 134
Decision Date: 3 June 2013

CaseChat Overview and Summary

The case of Semaan v The Queen involved an appeal against the conviction of the appellant for one charge of dangerous driving causing death and five charges of dangerous driving causing serious injury. The decision was handed down by the court of appeal. The appellant contested the admission of evidence related to his earlier driving and the jury's use of that evidence. The appeal raised two significant legal issues: whether the trial judge erred in admitting evidence of the appellant's earlier driving and whether the trial judge gave appropriate directions to the jury concerning the purpose for which they could use the evidence of the appellant's earlier driving.

The court of appeal found that the trial judge erred in admitting evidence of the appellant's earlier driving. The court held that the evidence was inadmissible as it did not directly relate to the events in question and was more prejudicial than probative. Additionally, the court determined that the trial judge failed to adequately direct the jury on the limited purpose for which the evidence could be considered, leading to a potential miscarriage of justice. The court of appeal held that these errors were material and affected the safety of the conviction, necessitating the allowance of the appeal and the quashing of the convictions.

In light of the findings, the court of appeal ordered a retrial of the appellant. The court emphasised the importance of ensuring that evidence is both relevant and not overly prejudicial, and that the jury is properly instructed on the purpose for which evidence may be used. The court's decision underscored the need for trial judges to carefully consider the admissibility of evidence and to provide clear directions to the jury to prevent any miscarriage of justice. The final orders of the court included the quashing of the appellant's convictions and the direction for a retrial.

Orders