Summary of Judgment
ABDIRIZAK JAMA HASHI v THE QUEEN
[2016] VSCA 288
25 November 2016
The Court of Appeal today published its reasons for refusing an application by Abdirizak Hashi for leave to appeal his convictions for two charges of rape.
On the morning of 20 November 2014, Mr Hashi drove a stolen car to the Housing Commission flats in Carlton. There, he struck up a conversation with the 15 year old complainant who was living at the flats with her aunt and uncle. He asked the complainant to come with him to his car so he could retrieve some money.
When they got to the car Mr Hashi told the complainant to get in the car with him. Initially, she refused but when threatened, she got in. He then sprayed deodorant over the exposed flame of a cigarette lighter he was holding, causing the spray to ignite, and threatened her with it. Mr Hashi drove them to an alleyway and raped the complainant. Mr Hashi then returned the complainant to the flats.
A short time later, Mr Hashi drove to a petrol station in Northcote where he entered the store and again used a deodorant can and a cigarette lighter as a makeshift flamethrower. He caused flames to shoot towards the cashier and demanded that she give him all her money (attempted armed robbery). The cashier screamed and another employee chased Mr Hashi away.
Mr Hashi sought to appeal his convictions for rape on two bases. The first was that the trial judge erred in allowing the evidence of his use of the deodorant can and lighter in the armed robbery to be admitted as coincidence evidence in support of the rape charges. The second was that the trial judge erred in refusing to sever the rape charges from the armed robbery charge so that there would be a separate trial for the armed robbery charge. Ultimately Mr Hashi pleaded guilty to the armed robbery charge.
The ultimate issues at the rape trial were first, whether the prosecution had established that the complainant did not consent to sexual activity, and secondly, whether the prosecution had established that the applicant was aware that the complainant was not or might not be consenting.
The Court of Appeal held that whether Mr Hashi had threatened the complainant with a makeshift flamethrower a short time before them having sexual intercourse was relevant to both issues. The coincidence evidence of Mr Hashi’s use of the lighter and deodorant can as a makeshift flamethrower during the attempted armed robbery was relevant to that fact, which was relevant to the ultimate facts in issue on the rape charges. The coincidence evidence had significant probative value, and the incidents involving the use of the makeshift flamethrower were closely linked in time and circumstances. The evidence also affected the assessment of the complainant’s credibility. The probative value of the evidence substantially outweighed the risk of unfair prejudice to Mr Hashi. Consequently, the Court of Appeal concluded that the trial judge was right in allowing the coincidence evidence to be admitted and in refusing to order severance.
NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment