Ali v the Queen

[2010] VSCA 182

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0774

ALI ALI

v

THE QUEEN

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JUDGES:	BUCHANAN, REDLICH and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 July 2010
DATE OF JUDGMENT:	12 July 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 182
JUDGMENT APPEALED FROM:	R v Ali, [2007] VSC 350, Curtain J

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CRIMINAL LAW – Intentionally causing serious injury – Assault in prison – Whether evidence of fellow prisoner should have been excluded as rendering the trial unfair – Trial judge’s directions as to fellow prisoner’s evidence sufficient to warn jury of its dangers – Evidence of witness in a previous trial admitted pursuant to s 55AC of the Evidence Act 1958 (Vic) – Consciousness of guilt evidence did not invite circular reasoning.

CRIMINAL LAW – Sentence – Remorse and rehabilitation – Sentence of 15 years’ imprisonment with a minimum term of 12 years’ imprisonment not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert, SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr S R Johns	Leanne Warren & Assocs

BUCHANAN JA:

1. After a trial in the Supreme Court, the applicant was convicted on a count of intentionally causing serious injury.  The applicant was sentenced to be imprisoned for a term of 15 years and it was ordered that he serve a term of 12 years’ imprisonment before he was to be eligible for parole. 

1. The applicant seeks leave to appeal against the conviction and the sentence. 

1. The applicant had been convicted on the same charge at the conclusion of two earlier trials.  Those convictions were set aside on appeal.

1. The offence was alleged to have been committed on 29 April 1999 in a cell in the Melbourne Custody Centre.  The victim was one Michael Tully.  Both the applicant and Tully were in custody on remand.

1. There were 12 prisoners in the cell, which was quite small, measuring 3.7 metres by 3.1 metres.  Benches lined two sides of the cell.  A closed circuit camera was fixed in the ceiling.

1. At the applicant’s trial, evidence as to the events that took place in the cell was given by, inter alia, custody officers employed at the Centre and seven of the prisoners in the cell.

1. According to the evidence called by the Crown, Michael Tully suffered from a mental illness and had a simple manner.  The applicant began harassing Michael Tully.  Tully appeared to be scared.  The applicant had formed the view that Tully was a paedophile.  The applicant spat upon Tully and verbally abused him.

1. When lunch was brought to the cell, the custody officer responsible for distributing the lunches looked through the window of the cell door and saw the applicant in the process of commencing a kicking motion.  He did not see the kick connect, but he called the applicant out of the cell, reprimanded him and extracted an assurance that he would behave himself.  The applicant was returned to…