What is it about complexity and the adversarial system?
Does the latter lead to the former or do they co-exist in spite or because of each other?
Those questions bubbled to the surface after reading R v Al Qassim decided by the Victorian Court of Appeal on August 28.
The case concerned the alleged gang rape of an underage girl on April 1, 2008 by the appellant Ahmad Al Qassim and three other men.
The complainant was 15 at the time and the appellant 20.
The appellant had arrived in Australia about 10 years before from Iraq with his parents and siblings.
Two of the men, Hassan Al Mousawi and Hussein Al Assadi, were jointly charged and presented with the appellant.
The third man was known as “Saleh” or the “bald man”, but was otherwise unknown.
The appellant and his co-accused were presented on 15 counts of performing an indecent act, digital and penile rape and acting in concert and aiding and abetting.
Also present at the time the complainant was assaulted was the her 14-year old cousin who, it appears, had intercourse with the appellant prior to and a short distance away from where the assault took place.
Only one of the accused, Hassan Al Mousawi, was convicted of rape.
The appellant and Hussein Al Assadi were acquitted of all rape and indecent act charges but convicted of aiding and abetting the unknown man and Al Mousawi to rape the complainant.
Al Qassim appealed his convictions on a number of grounds, one of which was that the trial judge, Pamela Jenkins, gave inadequate directions to the jury in relation to the aiding and abetting charges.
In her directions on aiding and abetting Judge Jenkins said to the jury:
“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.”
Later on the trial judge said:
“Here, the prosecution relies upon the behaviour of the accused men from the time that they left the plaza. They led [the complainant] to believe that the girls would be driven home. Her friend, Ahmad (Hussein Al Assidi’s younger brother), gave her continual assurances. They talked in Arabic and they sounded like they were arguing.
[The complainant] 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 [the complainant] 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, consented on the night to all sexual activity. Al Qassim of course said he had no sexual contact with [the complainant].”
In relation to the acting in concert element of the offences Judge Jenkins told the jury:
“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 [the complainant] 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 [the complainant] when he was with [the complainant’s cousin]. Al Qassim joined the other males when he has finished with [the complainant’s cousin] so there was time and opportunity for him to have sex with [the complainant].
At one stage [the complainant] was striking Al Qassim and telling him to ‘fuck off’ when Al Assadi was sexually penetrating her. The accused were aware that [the complainant] 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.”
All of which seems clear enough.
Commenting on this ground of appeal, Justice (as he then was) Frank Vincent (pic) said:
“In the present case there was evidence from which the jury may have inferred that the applicant’s presence did encourage the principals. The applicant took part in bringing the complainants to the scene; he equipped his friends with contraceptives; he participated in the group activity by having sexual intercourse with one of the girls and uttered words that could be construed as identifying himself with the actions of the group.
The jury may have considered this evidence for the purpose of determining whether the applicant was guilty as an aider and abettor. The trial judge, however, did not direct the jury to do so.
In my opinion, there was a danger that the jury may have proceeded on the basis that this was one of the ‘some cases’ in which mere presence was enough, and it was not necessary to consider and determine whether there was anything more which turned the presence of the applicant into that of an aider and abettor.” (Emphasis added.)
I don’t know about you, but it seems to me that HH said plenty about the circumstances which could have persuaded the jury of the appellant’s aiding and abetting behaviour.
Nevertheless, the Court of Appeal unanimously set aside the appellant’s convictions and ordered a new trial.
It occurs to me that every time prosecutors load-up a presentment with alternative and secondary offences, as was the case here, the chances of a successful appeal are automatically increased.
Much more wriggle room is created for an accused and his lawyers to cast doubt on a complainant’s evidence.
In gang rapes it will be difficult enough for a complainant to confidently identify each principal offender and describe their offending behavior usually three times (police statement, committal hearing and trial).
Why increase the burden by requiring a complainant to accurately identify secondary offenders and their behavior.
All the more so when each offender is charged both as a principal and an accessory.
Perhaps we should be asking Derek Ogg QC, a leading Scottish prosecutor and head of the National Sexual Crime Unit for a few pointers.
He thinks that just as much emphasis should be placed on the behavior of the accused as is directed at the complainant.
Now that would set a cat among the pigeons.
In any event, prosecutors should have KIS in mind.