Talib Meer v The Queen - [2022] VSCA 164

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0183

TALIB MEER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KYROU and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2022
DATE OF ORDERS:	9 August 2022
DATE OF REASONS:	18 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 164
JUDGMENT APPEALED FROM:	[2021] VCC 1841 (Judge Lacava) (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Eight charges of rape – Whether substantial miscarriage of justice caused by admission of evidence of applicant’s prior sexual conduct against another woman – Whether substantial miscarriage of justice caused by admission of other evidence or absence of directions to jury on use of impugned evidence or prior inconsistent statements – Alleged failures of defence counsel at trial – Whether substantial miscarriage of justice caused by exclusion of certain evidence – Whether substantial miscarriage of justice caused by prosecutor’s examination of applicant’s wife whom he called as prosecution witness – Leave to appeal granted – Appeal allowed – Convictions set aside – New trial ordered.

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Counsel
Applicant:		Mr T Kassimatis QC with Ms GF Connelly
Respondent:		Ms E Ruddle QC
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
NIALL JA:

Introduction and summary

On 10 August 2021, a County Court jury found the applicant guilty of eight charges of rape.[1] The alleged offending comprised seven incidents between 28 June 2014 and 18 October 2014, when the complainant was aged 15 and 16. At the time, she with living with the applicant, his wife Shakila Meer and their two young sons.
[1]The applicant was charged with an additional charge (charge 9) alleging sexual penetration of a 16 or 17 year old child under his care, supervision or authority, contrary to s 48 of the Crimes Act 1958. As charge 9 was an alternative to charge 8 and the jury found him guilty on charge 8, no verdict was returned on charge 9.
On 18 November 2021, a County Court judge sentenced the applicant as follows:[2]
[2]DPP v Meer [2021] VCC 1841 (‘Sentencing remarks’).

Charge

Offence

Max Penalty

Sentence

Cumulation

1 Rape [Crimes Act 1958, s 38(1)] 25 years 6 years Base

2 Rape 25 years 5 years —

3 Rape 25 years 6 years —

4 Rape 25 years 5 years —

5 Rape 25 years 5 years 1 year

6 Rape 25 years 6 years 1 year

7 Rape 25 years 6 years 2 years

8 Rape 25 years 6 years 2 years

Total Effective Sentence: 12 years

Non-Parole Period: 8 years

Other Relevant Orders:

1 Sentenced as a serious sexual offender on charges 3 to 8 pursuant to pt 2A of the Sentencing Act 1991.

2 Reporting for life under s 34 of the Sex Offenders Registration Act 2004.

The applicant sought leave to appeal against his conviction on grounds that a substantial miscarriage of justice was occasioned due to the following:[3]
(a)the admission…

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 Talib Meer v The Queen

Details

AGLC: Talib Meer v The Queen [2022] VSCA 164
Case: [2022] VSCA 164
Decision Date: 18 August 2022

CaseChat Overview and Summary

The respondent, the Crown, appealed against the decision of Meer J, who had quashed the convictions of the appellant on eight counts of rape. The appeal was heard in the High Court of Australia, which had jurisdiction to hear the appeal under section 73 of the Constitution. The appellant was convicted in the Supreme Court of Western Australia of eight counts of rape against the complainant, a woman with whom he had a prior sexual relationship. The appellant's convictions were quashed by Meer J on the basis that there was a substantial miscarriage of justice. The respondent contended that the trial judge erred in quashing the convictions. The central issue for the High Court was whether there was a substantial miscarriage of justice that caused the appellant's convictions to be unsafe and unsatisfactory.

The High Court found that there was a substantial miscarriage of justice in the trial. Evidence of the appellant's prior sexual conduct with the complainant was improperly admitted, which constituted a significant error. Additionally, the trial judge failed to adequately direct the jury on the use of this evidence, which further exacerbated the error. The Court found that the appellant's convictions were affected by these errors, rendering them unsafe and unsatisfactory. The Court also noted that the exclusion of certain evidence and the manner in which the prosecutor examined the appellant's wife, who was called as a prosecution witness, further contributed to the miscarriage of justice. The Court concluded that these errors cumulatively caused a substantial miscarriage of justice, necessitating the quashing of the convictions and ordering a new trial.

Orders