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Youssef v The Queen

Youssef v The Queen

Case [2019] VSCA 240 25 October 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0181

ALI YOUSSEF (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2019
DATE OF JUDGMENT:	25 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 240
JUDGMENT APPEALED FROM:	DPP v [Youssef] (Unreported, County Court of Victoria, Judge Davis, 2 March 2018 (Conviction))

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of rape and trafficking in drug of dependence to a child – No evidence applicant gave complainant methylamphetamine as payment for participation in sexual activity – Whether commercial element in applicant’s supply of methylamphetamine – Whether separation of jurors without jurykeepers during deliberations occasioned substantial miscarriage of justice – Jury separation constituted serious departure from prescribed processes of a trial – Appeal allowed – Judgment of acquittal entered on trafficking charge – New trial ordered on rape charge – Juries Act 2000 ss 49, 50 – CMG v The Queen (2013) 46 VR 728 and R v Chaouk [1986] VR 707 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood and Ms F Fox	Slades & Parsons Criminal Law
For the Respondent	Ms M Mahady	John Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
WEINBERG JA:

Convictions, sentences and grounds of appeal

An indictment filed in the County Court charged the applicant with rape (charge 1);[2] trafficking in a drug of dependence (methylamphetamine) to a child (charge 2);[3] and possessing a drug of dependence (methylamphetamine) (charge 3).[4]
[2]Crimes Act 1958, s 38. The maximum penalty is 25 years’ imprisonment.
[3]Drugs, Poisons and Controlled Substances Act 1981, s 71AB. The maximum penalty is 20 years’ imprisonment.
[4]Drugs, Poisons and Controlled Substances Act 1981, s 73. The maximum penalty is five years’ imprisonment (or 400 penalty units).

A jury convicted the applicant of each charge on 2 March 2018.

Following a plea, on 21 June 2018 the trial judge sentenced the applicant to be imprisoned for eight years and nine months on charge 1; for six months on charge 2; and for one month on charge 3. Three months of the sentence of imprisonment on charge 2 was ordered to be served cumulatively with the sentence on charge 1, resulting in a total effective sentence of nine years’ imprisonment. The judge fixed a non-parole period of six years.

The applicant now seeks leave to appeal against both conviction and sentence.

As to conviction, the applicant relies on two grounds:

1. The verdict of the jury in relation to charge 2 (trafficking a drug of dependence to a child) is unreasonable or cannot be supported having regard to the evidence.
2. As a result of an irregularity in the trial — namely, the separation of jurors from each other and…

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 Youssef v The Queen

Details

AGLC: Ali Youssef (a pseudonym)[1] v The Queen [2019] VSCA 240
Case: [2019] VSCA 240
Decision Date: 25 October 2019

CaseChat Overview and Summary

The applicant, Youssef, appealed against his conviction for the rape of a child and the trafficking of a drug of dependence to a child. The conviction was challenged on several grounds, including the sufficiency of evidence to support the drug trafficking conviction, and the impact of a separation of jurors during deliberations on the fairness of the trial. The appeal was heard in the High Court of Australia.

The primary legal issues addressed by the court were whether there was sufficient evidence to support the conviction for trafficking in a drug of dependence to a child, and whether the separation of jurors during deliberations constituted a substantial miscarriage of justice. The court examined whether the applicant had supplied the drug as part of a commercial transaction, which is an element required for the trafficking offence. Additionally, the court considered the impact of the jurors being separated on the trial process, and whether this warranted a new trial.

The court found that there was no evidence that the applicant had supplied the drug as payment for sexual services, which is a necessary element for the drug trafficking charge. The court also determined that the separation of jurors during deliberations constituted a serious departure from the prescribed trial process, as set out in the Juries Act 2000. This separation may have influenced the jury's decision-making process and thus warranted a new trial on the rape charge. The court allowed the appeal, entered a judgment of acquittal on the trafficking charge, and ordered a new trial on the rape charge.

The court's decision underscores the importance of adherence to trial processes and the sufficiency of evidence for criminal convictions. The separation of jurors was deemed to have the potential to cause a miscarriage of justice, warranting a new trial on the rape charge. The lack of evidence for the drug trafficking charge led to the acquittal on that count.

Orders