R v Al Qassim [2009] VSCA 192

Court of Appeal (Vic)|2009-08-28|Before: Mr J, Dodds-Streeton JA, Buchanan JA

The applicant, Ahmad Al Qassim, by a notice filed on 16 April 2009, seeks leave to appeal against his conviction and sentence in the County Court on two

counts of sexual penetration of a child under 16 years.

By a presentment filed on 5 November 2008, the applicant was charged with the following counts:

The Crown alleged that the applicant and his two co-accused, Hussein Al Assadi and Hassan Al Mousawi, together with an unknown man ('Saleh' or 'the bald man') and Al Assadi's younger brother Ahmed (a friend of the complainant), offered the complainant 'TR', a girl then aged 15, and her 14 year old cousin 'HC' a lift home from a shopping plaza in Epping. Instead, the girls were driven to a reserve in Lalor, where the offending occurred.

The Crown alleged that each co-accused committed some offences as a principal, whilst in relation to other offences, he acted in concert with, or aided and abetted, co-offenders. Some counts were put as paired alternatives of either rape or sexual penetration of a child under 16.

Count 1 indecent act with a child under 16 (all co-accused were alleged to have acted as principals)

Count 3 digital penetration of the complainant's vagina by an unknown male, in relation to which all co-accused allegedly acted in concert or aided and abetted the offending

Count 5 penile penetration of the complainant's vagina by an unknown male in relation to which the co-accused allegedly acted in concert or aided and abetted the offending

Count 6 attempted rape by penile penetration of the complainant's anus by Al Mousawi as principal

Count 7 attempted penile penetration of the anus of a child under 16 by Al Mousawi as principal in relation to which Al Assadi and the applicant allegedly acted in concert or aided and abetted the offending

Count 9 penile penetration of a child under 16 by Al Assadi as principal in relation to which the applicant and Al Mousawi allegedly acted in concert or aided and abetted the offending

Count 10 digital rape by the applicant as principal

Count 11 digital penetration of a child under 16 by the applicant as principal in relation to which Al Assadi and Al Mousawi allegedly acted in concert or aided and abetted the offending

Count 13 penile penetration of a child under 16 by the applicant as principal in relation to which Al Assadi and Al Mousawi allegedly acted in concert or aided and abetted the offending

Count 15 penile penetration of a child under 16 by Al Mousawi as principal in relation to which Al Assadi and the applicant allegedly acted in concert or aided and abetted the offending.

Following a contested committal hearing, on 22 October 2008, the applicant was committed to stand trial. The applicant and his co-accused were arraigned on 22 January 2009 and pleaded not guilty to all counts.

On 3 February 2009, a jury was empanelled in the trial of the applicant and his co-accused, Hussein Al Assadi and Hassan Al Mousawi. On 18 February 2009, the jury retired and, on 24 February 2009, returned the following verdicts:

Not guilty on counts 1, 2, 3, 4, 6, 7, 8, 10, 11, 12, 13 and 14

Not guilty on counts 1, 2, 3, 4, 6, 7, 8, 10, 11, 12 and 13

Guilty on counts 5, 9 and, by majority verdict, count 14

The applicant was thus found guilty in relation to one count on which the unknown man was the principal offender and one count on which Al Assadi was the principal offender.

Sexual penetration of a child under 16 years - contrary to section 45(1) Crimes Act 1958 - 10 years' imprisonment.

On 3 April 2009, the applicant was sentenced as follows:

Count 5 - sexual penetration of a child under 16 years - 12 months' imprisonment.

Count 9 - sexual penetration of a child under 16 years - 18 months' imprisonment.

Three months of the sentence imposed on count 5 were ordered be served cumulatively on count 9, giving a total effective sentence on one year and nine months' imprisonment. A non-parole period of 12 months was fixed. Thirty eight days pre-sentence detention were declared and an order was made for the retention of a forensic sample. The applicant was also placed on the sex offenders register and was ordered to report for 15 years.

The applicant appeals against conviction on the following grounds:

Ground 1: The Learned Trial Judge erred in failing to adequately instruct the jury that the Record of Interview of the co-accused AL ASSADI was not evidence that was admissible in the trial of the Applicant.

Ground 2: The Learned Trial Judge erred in failing to adequately instruct the jury as to the issue of presence involved in Aiding and Abetting.

Ground 3: The guilty verdict of the jury on Count 5 was inconsistent with the not guilty verdict on Count 3.

Ground 4: The guilty verdicts of the jury were unsafe and unsatisfactory.

The applicant, who was born on 1 September 1988 in Iraq, was aged 20 at the time of the offending. He arrived in Australia when aged about ten years with his parents, who were both teachers in Iraq, and his siblings. The applicant had no prior convictions.

The circumstances of the offending were set out in the reasons of the sentencing judge as follows:

The circumstances of these offences are detailed in the depositional material and in particular the evidence contained in the three VATE tapes of the complainant; statements of investigating police officers, and in particular the evidence at trial.

The Complainant was born on 17 January 1993 and was therefore 15 in April 2008. She lived with her mother. During the afternoon of 1 April, 2008, the complainant and her 14 year old cousin attended at the Epping Plaza where they met some friends.

Her mother subsequently received a text message that she would be a bit late and later another text message asking to pick them up from the Plaza. Her mother had no petrol and communicated to them to catch the bus home.

It was getting late when the complainant saw her friend Ahmed, and started talking to him. Ahmed is the younger brother of your co accused Hussein Al Assadi. The girls remained at the Plaza for another ½ hour or so talking to the group of boys you were with. The complainant asked her friend Ahmad whether his brother could give them a lift home and he agreed.

Seven people then squashed into Al Assadi's red commodore including the two girls, Ahmad, you and your two co accused: Hussein Al Assadi and Hassan Al Mousawi; and an unknown male known as 'Saleh'.

Both girls were in the back seat: the cousin sat on your knee and you were kissing during the ride; while the complainant sat on her friend Ahmad's knee and they were also kissing during the ride.

The complainant said that the males mostly spoke to one another in their language, Arabic. The complainant said that she and her cousin ... started to get scared ... because they didn't talk English and we didn't know what they were talking about ... Hussein Al Assadi who was driving, asked where the complainant lived. She replied Mill Park and gave directions to him. Hussein Al Assadi then drove to Simpson Street in Thomastown near the intersection of McPhee Court. This was your parent's home where you collected your mother's small red car while Saleh drove a small dark car.

The complainant and her cousin were told they had to change cars so they got out of the vehicle at the top of the Court. The complainant was told to get into the red car with Ahmad Al Assadi which you were driving. In her evidence the complainant said that she was continually assured by her friend Ahmad Al Assadi that they were being driven home.

The complainant's cousin was told to get into the small dark coloured vehicle being driven by Saleh with Hussein Al Assadi and Hassan Al Mousawi.

In your evidence at trial you said that both cars stopped at a service station where you bought condoms and later distributed them to the other males.

Eventually the cars were stopped and the complainant's cousin joined her in the same car. The complainant gave evidence that she then gave you directions to her house but this was ignored and you drove them to WA Smith Reserve in Darebin Rd, Lalor. The black vehicle followed and parked across the other side of the car park.

The complainant said that she kept asking her friend Ahmad what was going on and he told her not to worry. When they arrived at the park the complainant said that the boys kept talking in their own language and they were arguing and she and her cousin said they had to go to the toilet. They got out of the red car and ran across the park near the oval behind a tree. They then discussed what they were going to do and realised that their hand bags were still in the vehicle. They walked back to the vehicle and retrieved their bags. You and Ahmad had evidently waited nearby for them and you all started walking across the oval together. You were attracted to the young cousin and eventually you both went off together and had sexual intercourse in a plantation area beyond the oval.

The complainant said she was not aware of what you and her cousin were doing as she only noticed her cousin walk away to answer a call on her mobile phone. In the meantime the complainant and her friend Ahmad walked together to the opposite side of the oval and went to an area where there are trees and bushes with tan bark on the ground. The complainant said that she and Ahmad began kissing but that she refused to go any further with him.

Count 5

In her evidence the complainant described other activity not relevant to the offences for which you have been found guilty. At one point the complainant said that the unknown male, Saleh came over to her and she saw him put on a condom ... he put it on his dick and that's when he started having sex with me...he kept saying ... Where's the fun? What's wrong?... I got really scared and then I just kept crying ...and I didn't talk. Like I couldn't even talk really ... and then ... he put his penis in my vagina ... and he was moving his body. The complainant described that he stopped when he came or when his sperm came out. He then went and took his condom off and then pulled his pants up and walked over to the other boys... and he goes "I'm finished" ... and then someone else came back.

By their verdict the jury found you and each of your co accused guilty of the sexual penetration of the complainant on the basis that your were aiding and abetting the principal offender in the commission of this crime, Count 5.

Count 9

The complainant gave evidence that at a later stage ... two boys came over and they both came close to me and then I was just sitting there crying ... I was still crying ... and then ... the other one had sex with me ... he put his penis in my vagina and ... kept having sex with me and I was crying ... The complainant later identified this male as Al Assadi ... and the other one was just watching, just looking and I was crying and he's just like "what's wrong?" And then I kind of hit him in his lower thigh .... and I told him to F off. I said "F off"... The complainant later identified this male as you or the one she described as the weird dude ... The complainant later said that when she hit the weird guy and told him to fuck off he said something ... that I'm feisty or something ... and he kept saying where's the fun man

By their verdict the jury found you and each of your co accused guilty of the sexual penetration of the complainant. In your case, again it was on the basis that you were aiding and abetting the principal offender, Al Assadi, in the commission of this crime.

The complainant eventually pulled her pants up and ran to find her cousin. She was crying. At this stage you asked her "what's wrong what's wrong?" She told you to go away. She told her cousin what had happened and they were driven to a street near the complainant's home by you. The other four men left the car park in the other vehicle.

Upon arriving home the complainant's mother said that she looked distressed and was crying uncontrollably, really upset. She was immediately taken to the Hospital and examined and the police were contacted.

Police attended the crime scene at approximately 6 am on 2 April 2008 and photographed and collected items including: Condoms and Condom wrappers. Your DNA was found to match the DNA in one condom and your finger print matched a print found on one condom wrapper. The location of these items was consistent with you having had sex with the younger cousin in a bushy area further away.

The complainant also gave evidence that she had a conversation with your co- accused Al Mousawi during which she said she was only 15 years old. She did not tell any of the boys that she was old enough or over 15 years.

By the jury verdicts they clearly accepted that you knew she was under 16 years of age or were not satisfied on the balance of probabilities that you believed on reasonable grounds that the complainant was at least 16 years old at the time.[5]

The complainant gave evidence-in-chief by three VATE tapes.

In the VATE tape recorded on 3 April 2008, the complainant described meeting the co-accused and others at the shopping plaza and travelling to another place where she got into a different car with her cousin, her friend Ahmed and the applicant, whom she described as a weird guy who told her he was upset. According to the complainant, the applicant drove to the reserve saying, when the girls asked to be driven home, 'I have to go here first'.

The complainant described having sex with 'the bald guy' who put his fingers into her vagina and his penis into her vagina.

A blond man (Al Mousawi) next had sex with her and then 'two boys came over and then they both sort of, like, came close to me'.

The complainant stated that she was crying. She stated:

... one of them - I don't know - they had sex with me. Like, he put his, like, penis in my vagina and was, like, you know, kept on having sex with me and I was crying, and the other one was, like, just watching, just looking. And I was crying and he's just like, "What's wrong?" And then I, like, kind of, like, hit him, in, like, his lower, like, thigh and then I was like - and then I told him to F off. I said "F off." And then the other dude, I kind of like - and then the other dude, like, got off of me, like, and then they walked away ...

In relation to count 4 (penile rape), alternatively count 5, the complainant again stated that one of the men, described as a baldish guy (the unknown man), put on a condom and started having sex with her. The complainant described the role of Al Assadi and the applicant (the 'weird guy') as follows:

COUNSEL: And that's when you said that Ahmed's brother and the weird guy - - -?

COMPLAINANT: Yeah.

COUNSEL: Came over. And they came close. And you've mentioned that, you know, a few different things were - were said, like, asking you what's wrong and saying, "Where's the fun?" Who was saying those sorts of things?

COMPLAINANT: The weird one.

COUNSEL: The weird one. Did Ahmed's brother say anything?

COMPLAINANT: (SHAKES HEAD)

COUNSEL: And you told me that one of them had sex with you with his penis in your vagina.

COMPLAINANT: Mm.

COUNSEL: Which one?

COMPLAINANT: Ahmed's brother.

COUNSEL: Ahmed's brother. I want you to tell me everything about what happened when Ahmed's brother had sex with you.

COMPLAINANT: I was still lying down and the weird one was watching. Like, he was there and then, like - like, he was coming close, like, you know, and then I hit him and I told him to fuck off and then - and then - - -

COUNSEL: So tell me more about what happened when you hit him?

COMPLAINANT: I just hit him.

COUNSEL: How did you do that?

COMPLAINANT: With my hand.

COUNSEL: Where did you hit him?

COMPLAINANT: Where - on his thigh.

COUNSEL: And that - you were hitting the weird guy.

COMPLAINANT: Yeah.

COUNSEL: Is that right? And what happened when you told him to fuck off?

COMPLAINANT: He was like, "Ooh." He said something, that I'm feisty or something. And then he's like - and then also he was just saying, "Where's the fun, man? Where's the fun?" Like, and then - and then - - -

COUNSEL: So what was happening between you and Ahmed's brother when you were hitting the weird guy and - - -?

COMPLAINANT: Ahmed's brother was still having sex with me.

The complainant said that she told a '20 year old guy' that she was 15 years' old. The weird guy (the applicant) was present at the time.

In the VATE tape recorded on 11 May 2008 the complainant stated that all five men except her friend Ahmed had sex with her in the park.

In relation to the applicant, the complainant gave evidence as follows:

COMPLAINANT: Yeah. Okay. Well, after he said - after like, everything when I was laying there crying, he said - like because I wouldn't friggin' ... and then

COUNSEL: Sorry, I didn't - I didn't understand what you just said then. So you were lying there and he said something to you?

COMPLAINANT: Yeah when I was laying there crying.

The complainant said '[h]e had sex with me' although she could not give any details, stating, 'I just don't know how to say it'.

COUNSEL: ... [I]n relation to the weird guy, I need to know what - how he had sex with you and what he did and - - -

COMPLAINANT: Well - - -

..... ..... ..... ..... .....

COMPLAINANT: It was after Huss. He - yeah, when Huss walked off, the - he was after Huss and then - because the first time he tried, I told him to fuck off. That's all and then ... the blonde dude.

COUNSEL: So after he tried, ..... ..... ..... ..... .....

COMPLAINANT: Yeah.

COUNSEL: How did he try?

COMPLAINANT: He came - like, he was over - came over to me and he was trying to like, touch me and stuff and I like, hit him and I told him to fuck off.

COUNSEL: He tried touching you? ..... ..... ..... ..... .....

COMPLAINANT: Yeah...

In the VATE tape recorded on 6 January 2009, the complainant stated that prior to the commencement of the offending, her cousin, HC was 'with one of the guys' rather than talking on her mobile phone but that she wasn't 'one hundred per cent sure'. The complainant stated that the weird guy drove her and HC home in a red car.

The complainant was cross-examined by defence counsel, including counsel for the applicant. It was put to the complainant that the applicant was not present, but was away with HC at the time of the alleged indecent acts (count 1) 'at the start'. She responded: 'I don't know ... I don't know.'

The applicant denied that he had engaged in sexual activity with the complainant or had witnessed, encouraged or assisted any other person to do so. He acknowledged that he had sexual intercourse with her 14 year old cousin, but stated that it took place at some distance from the complainant. The applicant gave evidence that on 1 April 2008, he was at his house with Al Mousawi, Al Assadi, the unknown man (also known as 'Saleh' or 'the bald man') and Al Assadi's brother Ahmed, when Ahmed received a telephone call from girls who, he said, wished to meet to have sex. The men then drove to the plaza in Al Assadi's car, collected the girls and with all seven persons crushed into the one car, travelled back to the applicant's house where the party divided into two other cars, one belonging to the applicant's mother and the other to the unknown man. The applicant drove the girls in his mother's car to a park in Lalor. He stated that en route to the park, he bought condoms at a Shell service station. The park contained an oval (one side of which had a low fence) with parkland to the sides. On arrival at the park, the girls first moved away to go to the toilet and returned to get their bags from the car.

The applicant gave evidence that he and the girls walked from one side of the oval to the other side and climbed over a small fence where the boys were talking. He could not remember, but stated 'all of us were over there'. The applicant said that he walked off with HC, and beforehand he gave condoms to Ahmed 'because the boys wanted condoms'.

The applicant said that when he walked off with HC around the corner, before they had sex:

... I don't know if I was half naked or something like that and the boys were yelling and one of them was peeking through...

The applicant said he and HC then walked 'a bit more further to the other side ... '. After he had sex with HC, he threw away the condom and, leaving HC behind, got up and started walking back to rejoin the men.

The applicant stated that up to the time he walked back, he did not see or hear the complainant. HC then joined them and the complainant came towards them from the bushes, but he did not see from which area.

When cross-examined about his account of hearing the other boys yelling while he was with HC, the applicant was initially unable to remember his earlier testimony. He agreed that he 'could hear the other boys ...'. When the applicant was asked if he heard yelling or screaming, the following exchange occurred:

APPLICANT: ...I could hear the boys...

COUNSEL: What could you hear?

APPLICANT: I could just hear, like - - -

COUNSEL: I am sorry?

APPLICANT: Someone talks over there and we're sitting here, you could hear some mumbling -

COUNSEL: Yes but what did you hear? I'm asking you - - -

APPLICANT: I can't remember what I heard. I was with HC.

COUNSEL: Were they cheering you on or what were they doing?

APPLICANT: I just - you could hear voices so I moved to a quieter place.

HC initially gave evidence that after the applicant left her, she followed about ten minutes later. Subsequently, she testified that she returned two or three minutes later and did not see the applicant again on the oval. She testified that she was not sure whether he was with the men at the fence.

Ground 1 - The trial judge erred in failing adequately to instruct the jury that the record of interview of the co-accused Al Assadi was not admissible evidence in the trial of the applicant

The co-accused, Hussein Al Assadi, admitted at trial that he had told a number of lies in his police interview. He asserted that he gave the girls a lift home, first dropping off the other men on the way. He stated that he did not go to the reserve with the girls, but instead drove them to their desired destination.

The Crown alleged, inter alia, an illegal arrangement or agreement between the co-offenders. It further alleged that Al Assadi's lies demonstrated his consciousness of guilt. In his final address, the prosecutor said that the lie about first dropping off the other men was to show that there was no common criminal enterprise. The lie that Al Assadi did not go to the reserve was to show that he was never there. The prosecutor stated:

The Crown says that this shows a motive in his lying. The motive was that he realised quite plainly that he was guilty of rape and this was what the lawyers call a consciousness of guilt. As Her Honour and I will explain to you there's nothing fancy in it. It's just a logical process of thought.

This man knew quite well, quite simply that what he had done was wrong. No consent for what he did whatsoever.

The trial judge charged the jury on consciousness of guilt in relation to the lies Al Assadi told in his police interview.

In particular, her Honour instructed the jury that they could only use the lies:

... [T]o show that the accused implicitly admitted responsibility for the crime or crimes. You must not use any other lies in this way.

So to summarise, you may be able to use an alleged lie or lies by Al Assadi for two purposes. To help to assess his credibility and as evidence that he implicitly admitted responsibility for a particular crime or crimes.

Before us, the applicant submitted that the trial judge's failure to comply with repeated requests to give a direction that Al Assadi's record of interview was not admissible evidence in the applicant's trial had occasioned a miscarriage of justice. The applicant submitted that a direction of that kind was essentially standard in a joint trial and was necessary in the present case, as without it, the jury may have used Al Assadi's lies against the applicant.

Before the prosecutor had completed his address, counsel for the applicant, in the absence of the jury, requested the trial judge to direct that 'the use of [the] evidence of co-accused and such matters as the record of interview of ... the first defendant [Al Assadi's], is not evidence against either of the other two'. The discussion then proceeded to another topic and the requested direction was not given.

Before the trial judge had completed her charge, counsel for Al Assadi (on behalf of himself and the applicant's counsel) subsequently enquired whether the trial judge would give 'an accomplice direction'. Counsel explained that the direction was required to indicate that the Crown's reliance on lies told by one co-accused should not reflect on Al Mousawi or the applicant.

HER HONOUR: No, I've looked into that, I've never had occasion to do it in the past and I'm not aware of anyone who has. I can't find anyone who has, there is just no direction.

COUNSEL: I just thought there was some discussion where Your Honour said something about that yesterday.

HER HONOUR: It was raised and I thought there was something but there isn't. I have looked into it quite extensively in fact and there was no specific direction in which I or others have been able to locate this warranted in the circumstances.

The designation counsel attached to the direction sought diverged from the description of its purpose. Thus, to the extent that counsel again sought a direction that Al Assadi's record of interview was not admissible in the trial of his co-accused, the request was not clearly expressed. It is likely that her Honour apprehended that an accomplice direction was sought and understandably considered that it was not warranted in the circumstances.

Be that as it may, before us, the Crown conceded that her Honour did not, at any stage, in accordance with the conventional practice in joint trials, give a direction that Al Assadi's record of interview was not admissible in the applicant's trial.

In the charge, the trial judge made clear that the trials of the co-accused were held together as a matter of convenience. Her Honour made clear that the case of each accused must be considered separately in the light only of the evidence applicable to, or relating to, that accused.

So, for convenience, they are all tried together, but you must be careful not to allow that convenience to override justice. The parties are entitled to have the case against each accused considered separately. You must consider the case against each accused separately in light only of the evidence which applies to that accused. You must ask yourself in relation to each accused, whether the evidence relating to that accused has satisfied you beyond reasonable doubt that he is guilty of the offence he has been charged with.

In a joint trial, a specific direction that evidence against one co-accused is not admissible against another is usually required. It has been held that the failure to give such a direction will not vitiate the conviction where it cannot be said to have occasioned real harm to the defence. In R v Towle, the New South Wales Court of Criminal Appeal stated:

Where more than one are tried together, except in unusual cases, it is the clear duty of the trial judge to separate for the jury's consideration the evidence properly relevant and material in the case of each, and to present the case made against each of the accused separately. The jury should be specifically told of the evidence which they may consider against each individual accused, together with appropriate directions as to the legal principles involved. In this connection it is insufficient to rest such a direction upon the formula that each case must be considered separately, without further explanation.[6]

Like the present case, Towle involved a joint trial of several co-accused charged with rape. The trial judge failed to give a specific direction that their statements were not admissible against each other. The co-accused all asserted that the victim consented, and 'no one blame[d] the other'. The statements of each co-accused therefore 'assisted the defence of the others to a marked extent'.[7]

The Court of Criminal Appeal considered that the absence of the usual direction did not cause a substantial miscarriage of justice. It rejected submissions that, despite the absence of overt mutual blame, various discrepancies between the statements of some co-accused were capable of being used prejudicially against the others. The Court concluded that the statements told consistent, mutually supportive stories and no one statement created additional prejudice to any accused. In such circumstances:

... no real harm can have been occasioned to the defence put forward by each of the accused by reason of the failure of the trial judge to instruct the jury that the statement of any one could not be regarded as evidence against any other.[8]

In contrast, in the present case, while Al Assadi did not seek to implicate or blame the applicant in his police interview, his statements, unlike those in Towle, had the potential to prejudice his co-accused. The prosecutor invited the jury to construe the admitted lies in Al Assadi's record of interview as an attempt to fabricate an alibi in relation to the alleged criminal agreement which, by its nature, involved all the co-accused. While neither the prosecutor nor the judge, invited or authorised the jury to use the implied admission against Al Assadi's co-accused, it was not made clear that its use against the applicant was proscribed. Although her Honour instructed the jury that they must consider the case against each co-accused separately in the light only of the evidence applicable to him, she did not identify the record of interview as evidence applicable only to Al Assadi. In the absence of an unambiguous direction, the use of any implied admission may not have been quarantined to Al Assadi. It may have extended to, and prejudiced, the applicant, as one of the parties to the alleged agreement.

While the trial judge hypothesised that the applicant was found guilty on the basis of aiding and abetting, rather than acting in concert, the basis of the verdicts is necessarily a matter of supposition. Further, although the prosecutor alleged an agreement to rape the complainant, the record of interviews' potential to dispose the jury to find the applicant guilty on aiding and abetting the principal in counts 5 and 9 can not be excluded. As the applicant submitted, the jury may have reasoned, on the basis of Al Assadi's lies, that the applicant did not believe that the complainant was over 16 years of age, as the lies would otherwise be unnecessary.

Ground 2 - The trial judge erred in failing adequately to instruct the jury as to the issue of presence in aiding and abetting

The applicant submitted that the trial judge failed to direct the jury properly on the significance of 'mere presence' in the context of aiding and abetting.

The applicant acknowledged that the trial judge explained the Crown case on presence in the context of aiding and abetting, but submitted that, despite repeated requests, she did not direct the jury that mere presence at the scene of the offending would not suffice. Further, the applicant submitted that her Honour's observation that 'in most cases a person would need to do something more than simply being present when the offence is committed' was potentially confusing, as it suggested that in a residuum of cases, mere presence at the crime scene would suffice.

The applicant submitted that the nature of the Crown's case and the applicant's defence on presence in the context of aiding and abetting (or acting in concert) made it essential to direct that mere presence at the scene of the offence was insufficient.

In his closing address, the prosecutor informed the jury that:

A person participates in the joint criminal enterprise either by committing the agreed crime itself, a perpetrator, or simply being present at the time which the crime is committed and with the knowledge that the crime is to be or is being committed by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of the person at the time when the crime is committed and the readiness to give, and if required, is sufficient to amount to an encouragement to the other participant. As I understand the evidence, it is a matter for you, leaving aside Mr Al Qassim, the other men say that they are [indistinct] the foliage while the acts are occurring. Right there. And indeed, the Crown says that Mr Al Qassim is equally there. The Crown says ... if ... intercourse occurred with [HC] metres from where the incidents were occurring with [TR] ... Mr Qassim left [HC] ... The Crown says that was the time and opportunity for Mr Al Qassim to commit the offences.

In contrast, in his closing address, counsel for the applicant submitted that he was not relevantly 'there' during the conduct comprising counts 1 to 7, as he was metres away with HC and there was no evidence on which to find beyond reasonable doubt that he was 'involved in being there', encouraging the other men. Counsel also argued that the applicant did not have enough time after leaving HC to be present in relation to count 9, because 'he was following someone different'.

The trial judge instructed the jury in detail on acting in concert, including the element of presence. Her Honour described the Crown's case on presence and assistance or encouragement in that context as follows:

The Crown then says that the accused were present when each of the offences were committed or were in the near vicinity while knowing that an offence of this kind was being committed. The Crown says, while [TR] was still lying on the ground having fallen over and still crying the accused and the unknown male came over. She was crying and in the presence of the accused men the unknown male asked her what was wrong and she replied, "How would you feel?" Each of the accused had kept saying at various times, "Where's the fun?" And "What's wrong." The accused and the unknown male took turns to have sex with the complainant and to each other used expressions such as, "Next," and "I'm finished," when telling another it was his turn. The accused and the unknown male remained together or in the same vicinity whilst the offences occurred.

Al Qassim knew that the other males were having sex with [TR] when he was with [HC]. Al Qassim joined the other males when he has finished with [HC] so there was time and opportunity for him to have sex with [TR]. At one stage [TR] was striking Al Qassim and telling him to "Fuck off" when Al Assadi was sexually penetrating her. The accused were aware that [TR] was crying and not consenting to their actions and assisted each other, encouraged each other and conveyed to each other their assent and concurrence in the commission of the crimes.

After the trial judge instructed the jury on aiding and abetting as an alternative to acting in concert, counsel for Al Mousawi requested her to clarify that 'mere presence' was not enough, as the jury might be misled, 'where some men might be up at the oval fence while the complainant was with another man down in the bushes to one side of the oval'.

... [T]hey may well find in terms of being in the vicinity that that was certainly close enough in the context of other evidence that they're prepared to accept.

COUNSEL: No, but it has to be for the purpose of participation or willingness to - - -

HER HONOUR: That's what I'm saying. You've taken it out of context. There are a number of elements that they need to be satisfied about. Just being there is not enough. It's that being there in conjunction with being satisfied about the other elements of acting in concert or aiding and abetting.

COUNSEL: The only reason I raised it was that the bank robbery example was raised, and that example was obviously if a robber's inside and the other one's outside, obviously they have a common mind to commit the crime. But simply to leave it on the basis of vicinity when the evidence is that people are up at the fence which looks as though - I forget what the evidence was now, but something like 30 metres or 25 metres or something - - -

HER HONOUR: It's not a distance argument here. Whether they're behind a bush or peeping or whether they're up by the fence is not the issue. It's for the jury to decide in the context of other evidence they may or may not accept - presuming they accept other evidence - and in the context of that that they're satisfied, they may well find that that is within the vicinity and present. They may not. But I'm not going to say if they're up by the fence they can't be present. That would be completely improper.

COUNSEL: I'm not saying that. I'm saying if they're at the fence it has to be for the purpose of facilitating the crime.

HER HONOUR: Is there something about anything else I have said in that direction that I've missed?

COUNSEL: No, Your Honour, that's the only - - -

A person aids and abets the principal offender if he or she intentionally helps him to commit the offence or intentionally encourages him by words or presence to commit the offence or intentionally conveys to him by words or presence and behaviour that he supports the commission of the offence. A person can aid or abet an offence by words, action, or both. However in most cases, he needs to do something more than simply being present when the offence is committed. He needs to say or do something that assists or encourages the principal offender to commit that crime. In some cases, it is possible for the mere fact of the accused's presence at the commission of the offence to constitute encouragement of the principal offender.

The prosecution also alleges in this case that the accused's presence at or in the vicinity of the crime encouraged the principal offender. The prosecution referred to the evidence that a co-offender was either watching the sexual activity or waiting their turn. It is for you to determine, whether simply by being present, any accused encouraged the commission of the offence. You do not need to be satisfied that the accused's words or actions caused the principal offender to commit the crime. A person can assist or encourage someone to commit an offence even if that person already intended to commit that offence.

You also do not need to be satisfied that the principal offender was actually assisted or encouraged by the accused's behaviour. As long as the accused endeavoured to assist or encourage him in circumstances in which the principal offender could potentially have been assisted or encouraged, then this element would be met. However you must be satisfied that the accused intentionally aided or abetted the commission of the relevant offence. That is, you must be satisfied that by saying or doing what he did, the accused intended to help encourage or convey support to the principal offender to commit that offence. It is only if you are satisfied beyond reasonable doubt that the accused intentionally assisted or encouraged the principal offender to commit the relevant crime under consideration that this third element would be met.

Here, the prosecution relies upon the behaviour of the accused men from the time that they left the plaza. They led [TR] to believe that the girls would be driven home. Her friend, Ahmad, gave her continual assurances. They talked in Arabic and they sounded like they were arguing. [TR] thought the girls were being separated. They were taken to the Reserve without the girls' consent or prior knowledge. Her friend Ahmad effectively lured her to the bushes across the oval and set her up for an attack by the four males. They all initially acted as a group in committing the first offence, after which [TR] said she tried to escape, fell over, and then just froze, crying uncontrollably. Thereafter, she says they took it in turns to rape her. One would leave and another appear and on one occasion, she said there were two present.

The defence response is again the same response that I outlined to you when I was describing the concept of acting in concert. Just to remind you, defence say that the accused were never aiding and abetting in any way to commit a crime, the complainant, [TR], consented on the night to all sexual activity. Al Qassim of course said he had no sexual contact with [TR].

To summarise then, before you can find the accused or anyone of them guilty of committing an offence by aiding or abetting, the prosecution must prove to you beyond reasonable doubt that someone committed the relevant offence, that the accused knew or believed in the essential circumstances needed to establish that offence, and that the accused intentionally assisted or encouraged the principal offender to commit the offence either by helping him or encouraging him or conveying his support. If you find that any of these elements have not been proven beyond reasonable doubt, then you must find the accused, that accused you have under consideration not guilty of that offence by way of aiding or abetting.

Subsequently, the jury sought clarification of the element of intentionally assisting or encouraging in the context of aiding and abetting.

Then the one you have asked for specific elaboration about is that the accused intentionally assisted or encouraged the principal offender to commit that offence.

Now, in relation to that element, the prosecution must prove that the accused intentionally assisted, or encouraged the principal offender to commit the relevant offence. In this case it is alleged that each accused did this, the prosecution says, when they were not described as the principal offender by aiding and abetting. Aiding and abetting can be committed either by intentionally helping the principal offender to commit the offence, or intentionally encouraging him by words or presence to commit the offence, or intentionally conveying to him by words or presence, and behaviour, that he supports the commission of the offence.

Now a person can aid or abet an offence by words, action or both. However, in most cases he needs to do something more than simply being present when the offence is committed. He needs to say or do something that assists or encourages the principal offender to commit that crime.

In some cases it is possible for the mere fact of the accused's presence at the commission of the offence to constitute encouragement of the principal offender. The prosecution also here allege that in this case the accused's presence at or in the vicinity of the crime encouraged the principal offender.

The prosecution referred to the evidence that a co-offender was either watching the sexual activity or waiting their turn. It is for you to determine whether simply by being present in the way that any of the accused were, that any accused encouraged the commission of the offence.

You do not need to be satisfied that the accused's words or actions caused the principal offender to commit the crime. A person can assist or encourage someone to commit an offence even if that other person, the principal offender, already intended to commit that offence.

You also do not need to be satisfied that the principal offender was actually assisted or encouraged by the accused's behaviour. As long as the accused endeavoured to assist, or encouraged him in circumstances in which the principal offender could potentially have been assisted or encouraged, then this element will be met.

However you must be satisfied that the accused intentionally aided or abetted the commission of the relevant offence, that is you must be satisfied that by saying or doing what he did the accused intended to help, encourage or convey support to the principal offender to commit that offence. It is only if you are satisfied beyond reasonable doubt that the accused intentionally assisted or encouraged the principal offender to commit the relevant crime under consideration that this third element will be met.

In R v Lam, this Court (Buchanan, Vincent and Kellam JJA) stated:

The culpability which attracts the operation of the criminal law to an individual designated as an aider and abettor under those principles arises from the fact of his or her presence at the time that the crime is committed and behaviour whilst there and not by reason of any earlier agreement or arrangement with the perpetrator with respect to it. That situation is separately addressed. Whatever uncertainty may exist with respect to the limits of accessorial liability, it is crystal clear that simply being present at the scene of a crime being committed by another is insufficient to render an individual also guilty. Further, it is not enough that the person alleged to be aiding and abetting is present by reason of curiosity, a high level of interest or even because of the presence of strong approval of the principal's conduct. The justification for rendering the individual liable arises from the contribution that he or she intentionally makes to the commission of the crime. This, of course, can take different forms and these are encompassed by the broad descriptive notions of counselling, procuring, assisting or encouraging the principal offender. It is apparent that quite different questions will be thrown up according to the type of contribution alleged and the circumstances surrounding the particular offence. But whatever the form of contribution, in order to become a party to or participant in the commission of a crime by another, an aider and abettor must do something of a kind that can be reasonably seen as intentionally adopting and contributing to what is taking place in his presence. In this sense, the aider and abettor becomes linked in purpose with the principal actor.[9]

In Lam, the Court quoted with approval the observations of the trial judge in that case and those he cited from other authorities about presence in the context of aiding and abetting.[10] In particular, the trial judge in Lam referred to the observations of the Queensland Court of Criminal Appeal in R v Beck, where Macrossan CJ (with whom McPherson J agreed) stated:

Intentional encouragement may come from expressions, gestures ''or actions intended to signify approval''. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend on a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions. The fortuitous and passive presence of a mere spectator can be an irrelevance so far as an active offender is concerned. But, on the other hand, a calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime will be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out.[11]

Therefore, although the Court of Appeal in Lam considered that mere presence in the sense of a fortuitous or passive presence would not suffice, its discussion including its approval of the authorities quoted by the trial judge, is consistent with the view that in some cases, presence may evidence encouragement.

In the present case, the trial judge stated that intentional encouragement or assistance was necessary. Her directions (including the acknowledgement that in a rare case, presence could evidence encouragement), generally accorded with the views recently expressed by this Court in Lam. Ultimately, however, as Buchanan JA has shown, although the jury sought clarification, her Honour did not sufficiently make plain that presence without more would not suffice and did not clearly identify the additional matters said to constitute encouragement or assistance.

Ground 3 - The guilty verdict of the jury on count 5 was inconsistent with the not guilty verdict on count 3

The applicant submitted that the not guilty verdict on ground 3 was inconsistent with his conviction on count 5.

Counts 2 and 3 were the alternative counts of rape and digital penetration of a child under 16, in which the unknown bald man, 'Saleh', was allegedly the principal offender. The applicant was found not guilty in relation to both counts.

Counts 4 and 5 were the alternative counts of penile rape and penile penetration of a child under 16, in which the unknown man, 'Saleh', was again the alleged principal offender. In contrast to his acquittal on count 3, the applicant was found guilty on count 5.

Counts 2 and 3 and counts 4 and 5 all arose from the same incident of sexual activity between the unknown man and the complainant, in which the digital penetration was said to have shortly preceded the penile penetration. The applicant contended that given the temporal proximity of the alleged acts and the indistinguishable quality of the complainant's evidence in relation to both counts, the differing verdicts on counts 3 and 5 were an affront to logic and relevantly inconsistent.

In my opinion, however, the different verdicts on counts 4 and 5 are rationally explicable.

First, contrary to the applicant's submission, the quality of the complainant's evidence of counts 4 and 5 (penile penetration) was distinguishable from her evidence on count 2 and 3 (digital penetration) by the principal offender.

Regarding counts 2 and 3, the complainant stated that the bald man 'fingered her' and when asked to describe it further, stated 'I don't really remember'. She repeated that he 'fingered her', and when asked to amplify that, stated 'I don't know how to say it'. She stated '[h]e put his fingers in my vagina' but when questioned further, said that she did not know what to say and did not want to talk about the details.

I was still crying and then, like, as I said I was numb ... and then - and then he like, was touching, like, my thighs, like, my legs and then ... went in and touched my ... like, my vagina...

In relation to counts 4 and 5 (penile penetration), she stated '[h]e put his penis in my vagina'.

The complainant reiterated that the unknown man put his penis in her vagina and 'started having sex with me' and was moving his body when 'his penis was in my vagina'. She then stated that the defendant 'orgasmed', stopped and took his condom off.

The complainant's description of penile penetration and intercourse was fuller, more detailed and unequivocal than her description of counts 2 and 3, which left open the possibility of non-penetrative touching. The greater clarity and consistency of the complainant's evidence on counts 4 and 5 constituted a rational basis for the different verdicts on counts 3 and 5.

Secondly, the forensic evidence constituted by condoms containing a male's DNA found at the scene supported the allegation of penile penetration, while there was no corresponding forensic evidence to support the allegations of digital penetration.

Ground 4 - The guilty verdicts of the jury were unsafe and unsatisfactory

The applicant submitted that the jury did not accept the complainant's evidence that sexual activity had taken place unless it was confirmed by the evidence of the accused themselves. While Al Mousawi, who was found guilty of rape, admitted that he had sex with the complainant, where the accused men denied sexual activity with the complainant, the jury had returned not guilty verdicts. In particular, it found the applicant not guilty on counts 10, 11, 12 and 13, in which he was alleged to have offended as a principal.

Further, the applicant submitted that there was no evidence capable of establishing that the applicant was relevantly present at and aware of the sexual activity between the complainant and the unknown man in relation to count 5. Rather, the evidence indicated that the applicant was involved in sexual activity with the complainant's cousin in a different area of the reserve. In relation to count 9, the applicant submitted that although there was evidence of his presence and conduct, he and Al Assadi both denied it.

The applicant submitted that in such circumstances, a jury, acting reasonably, must have entertained reasonable doubt about his guilt on counts 5 and 9.

The applicant's evidence in relation to count 5 was, however, that he was near enough to hear yelling or mumbling while he was apart with HC. The complainant gave evidence of matters said to constitute assistance or encouragement. In relation to count 9, she gave detailed evidence of the applicant's presence and conduct.

In my opinion, it cannot be concluded that any verdict based on the complainant's evidence alone is unsafe. The not guilty verdicts did not necessarily bespeak disbelief of the complainant or the rejection of her evidence in toto, but are equally consistent with the jury's exercise of discrimination based on the applicable

Leave to appeal should be granted and the appeal treated as instituted and

heard instanter. The appeal should be allowed and the appellant should be retried.

The applicant sought leave to appeal against sentence on a number of grounds. As the appeal against conviction will be allowed, it is unnecessary to consider that application.

I have had the benefit of reading in draft the reasons of Dodds-Streeton JA. I respectfully agree with her Honour that leave to appeal should be granted, the appeal allowed, and a retrial of the appellant ordered.

[1] R v Russell [1933] VicLawRp 7; [1933] VLR 59, 67 (Cussen ACJ).

[3] See R v Beck [1990] 1 Qd R 30, 37 (Macrossan CJ).

[4] R v Lowery and King (No 2) [1972] VicRp 63; [1972] VR 560, 561 (Smith J). See, for example, R v Kepa, unreported, Court of Appeal, Qld, 13 June 1997; Jefferies v Sturcke [1992] 2 Qd R 392; Roughley v R [1995] TASSC 14; (1995) 5 Tas R 8.

[5] R v Ahmad Al Qassim (Unreported, County Court of Victoria, Judge Jenkins, 3 April 2009) [4]-[25].

[6] (1955) 72 WN (NSW) 338, 340 (Street CJ, Roper CJ in Eq and Herron J).

[10] Ibid 474-8. See R v Cuong Quoc Lam and Ors [2005] VSC 294, [18]-[26], [36] and [76]-[79] (Redlich J).

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