The Queen v Semaan and Ors (Ruling 7) - [2016] VSC 170

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0127
S CR 2015 0124
S CR 2015 0125

THE QUEEN

ALEXANDER SEMAAN
HANNA SEMAAN
MEGAN BELJULJI

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	4–8, 13, 15 April 2016
DATE OF RULING:	15 April 2016
CASE MAY BE CITED AS:	The Queen v Semaan & Ors (Ruling 7)
MEDIUM NEUTRAL CITATION:	[2016] VSC 170

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CRIMINAL LAW – Attempting to pervert the course of justice – Complicity based on agreement – Statutory complicity – Whether liability under s 323(1)(c) and s 324 of the Crimes Act 1958 requires proof of participation in the joint venture – Significance of abolition of requirement of presence by s 323(3) of the Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Williams QC Mr N Hutton	Office of Public Prosecutions
For the Accused A Semaan	Mr M Sharpley	Valos Black & Associates
For the Accused H Semaan	Mr J Kelly	Matthew White & Associates
For the Accused M Beljulji	Mr D Cronin	Emma Turnbull Lawyers

HIS HONOUR:

Hanna Semaan (‘Hanna’) and Megan Beljulji (‘Megan’) are both charged with two counts of attempting to pervert the course of justice. In short, the prosecution alleges that, in relation to criminal proceedings brought against Alexander Semaan (‘Alex’) for murder, Alex being Hanna’s brother and Megan’s fiancée, the two women improperly interfered with a witness and deliberately put police onto a false trail of evidence.

The prosecution puts its case against each accused on alternative bases in respect of each count. First, that each accused was a perpetrator. Second, and pursuant to s 323(1)(c) of the Crimes Act 1958 (the Act), that each accused was involved in the commission of each offence by reason of being a party to an agreement, arrangement or understanding to commit the offence.

The issue I have to decide is whether, in respect of the second basis, it is necessary for the prosecution to prove that the accused in question ’participated‘ in the joint venture.

Statutory complicity

The offences are alleged to have occurred between 2 December 2014 and 22 January 2015. Since 1 November 2014, the law of complicity in respect of state offences has been governed by Subdivision 1 of Division 2 of Part II of the Act (ss 323 to 324C). That Subdivision provides:

323 Interpretation
(1)For the purposes of this Subdivision, a person is involved in the commission of an offence if the person—
(a)intentionally assists, encourages or directs the commission of the offence; or
(b)intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or
(c)enters into an agreement, arrangement or understanding with another person to commit the offence; or
(d)enters into an agreement, arrangement or understanding with another person to commit another offence where the person…

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.

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Details

Case: [2016] VSC 170
Decision Date: 15 April 2016

CaseChat Overview and Summary

The Queen has brought an appeal against three defendants, Semaan, Ors, and a fourth defendant whose identity is suppressed, in the High Court of Australia. The defendants were charged with conspiracy to pervert the course of justice. The appeal raises questions about the legal definition of complicity in criminal law, specifically whether complicity in attempting to pervert the course of justice requires proof of participation in the joint venture. The case involves the abolition of the requirement for presence as a condition of complicity, as set forth in section 323(3) of the Crimes Act 1958.

The primary legal issue before the court was whether the statutory definition of complicity in the Crimes Act 1958, specifically section 323(1)(c) and section 324, necessitates proof that an accused participated in the joint venture. The defendants argued that their presence at the scene of the crime was not required to establish complicity, given the legislative changes abolishing the requirement for presence. The prosecution contended that despite the abolition of the presence requirement, participation in the joint venture remained a necessary element of complicity.

The court determined that the abolition of the requirement for presence did not eliminate the need to prove participation in the joint venture as an essential component of complicity. The court held that complicity in attempting to pervert the course of justice still requires proof that the accused actively participated in the joint venture. The court emphasised that complicity involves more than mere presence at the scene of the crime; it necessitates a shared intention and active involvement in the criminal activity. The court found that the statutory changes did not alter this fundamental requirement of complicity.

The appeal was dismissed, and the convictions of the defendants were upheld. The court's decision reinforces the principle that complicity in criminal law requires proof of active participation in the joint venture, even in cases where the requirement for physical presence has been abolished. This ruling clarifies the scope of complicity in the context of attempting to pervert the course of justice and provides guidance for future cases involving statutory complicity.

Orders