Mahboob Ali Mir v The Queen
[2012] VSCA 150
•29 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0098 | |
| MAHBOOB ALI MIR | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN and NEAVE JJA and BELL AJA | ||
WHERE HELD: | MELBOURNE | ||
DATES OF HEARING: | 29 June 2012 | ||
DATE OF JUDGMENT/ORDER: | 29 June 2012 | ||
MEDIUM NEUTRAL CITATION: | [2012] VSCA 150 | ||
JUDGMENT APPEALED FROM: | [DPPv Mir] Unreported, County Court of Victoria, Judge Wilmoth, Date of Sentence, 19 April 2012 | ||
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CRIMINAL LAW – Sexual offences – Accused found not guilty of rape and guilty of indecent assault – DNA evidence equivocal – Verdict unsafe and unsatisfactory – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C F Thomson | Balmer & Associates |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
After a trial in the County Court, the applicant was found guilty on a charge of indecent assault. The charge was an alternative to a charge of rape. The applicant was acquitted of rape and detention for the purpose of sexual penetration.
The applicant was sentenced to be imprisoned for a term of ten months. Seven months of that term was suspended.
The applicant seeks leave to appeal against the conviction and sentence.
The applicant was working as a taxi driver. Early in the morning, the applicant picked up the complainant from a hotel in North Melbourne and drove her to her residence in Caulfield. The complainant fell asleep in the taxi. She said that she awoke to find the applicant had his finger in her vagina. She said that she had been drinking beer and Jagermeister shots in a hotel in North Melbourne and had left about midnight. She could not remember how she hailed a taxi or anything about the taxi ride.
The complainant got out of the taxi and paid the fare with a credit card. She telephoned her flatmate as, although she was in the right street, she could not recognise her house. The flatmate directed the complainant to the house. She told him that the taxi driver had his finger in her vagina.
The next day she spoke to the informant on the telephone who told her to bring the clothes she was wearing to the Epping Police Station. She did so. DNA contributions for which the applicant could not be excluded were found on the complainant's belt buckle and jeans button.
A forensic officer employed at Victoria Forensic Services Centre gave evidence that samples were taken from a button on jeans worn by the complainant, the buckle on a belt of the complainant and the inside of the front panel of underpants worn by the complainant. Samples were also taken from the complainant and the applicant. The samples were subjected to a DNA profiling process.
The witness said there was a mixture of DNA originating from at least two people on the belt buckle and the button. The applicant could not be excluded as the second contributor to the DNA profiles on the samples. It was 82 times more likely that the DNA profile from the belt buckle would occur if the biological material came from the complainant and the applicant than that if it originated from the complainant and another person chosen at random from the Australian Caucasian population.
It was at least 16 times more likely that the DNA profile from the jeans button came from the complainant and the applicant than if it came from the complainant and another person chosen at random from the Australian Caucasian population. The witness described the degree of probability of the sample taken from the belt buckle being the DNA of the applicant as being a 'moderate' degree of probability and the degree of probability of the applicant's DNA being found on the jeans button as being a 'limited' degree of probability. Although a mixture of DNA originating from at least two persons was obtained from the front panel of the underpants, the applicant was excluded as a contributor to that DNA.
The witness said that DNA could be transferred from one object to another. She said she would expect the applicant's DNA would be present in the taxi and could have been transferred to the passenger seat of the taxi.
The defence called no evidence.
The respondent concedes that two of the grounds of the application for leave to appeal against conviction have been established. They are:
2. The conviction is unsafe and unsatisfactory because the jury became confused as to what sort of indecent assault was alleged against the applicant.
3.The verdict is unsafe and unsatisfactory as the jury appears to have been compromised in its decision‑making process.
The jury were instructed by the trial judge that ‘the indecent assault is said to be the touching of the complainant's vagina area by the accused.’
The complainant, however, gave no evidence of such indecent assault. Her evidence was limited to digital rape. She said that she got into a taxi and that ‘ … The next thing I recall is waking up in the taxi, which was stopped, and the taxi driver had his fingers in my vagina.’
The complainant said that she ‘Confronted him about it and he got really angry with me and pointed to the meter and told me I had to get out, but that I had to pay and get out.’
In my view the Crown's concession was warranted: the verdict of guilty is unsafe and unsatisfactory. If the jury were not satisfied the applicant penetrated the complainant's vagina with his finger, it is not possible to identify the basis upon which they were satisfied he touched the area of her vagina. It does appear likely to me that the verdicts of not guilty of rape but guilty of indecent assault are the result of a compromise.
I do not think the DNA evidence filled the gap. The DNA found on the complainant's belt buckle and the jeans button may not have been that of the applicant. If it was, it could have been transferred while the complainant was in his taxi, through secondary transfer with another object containing his DNA. It is significant that the applicant did not contribute to the DNA found on the complainant's underpants.
In the light of the evidence and the verdict of not guilty on the charge of rape, I consider that there is a reasonable doubt as to the guilt of the applicant. That doubt is not capable of being resolved by the jury's advantage in hearing and seeing the evidence. Upon an examination of the whole of the evidence, I am of the view that it was dangerous in all the circumstances to allow the verdict of guilty to stand.[1]
[1]M v R (1994) 181 CLR 487.
Accordingly, I would grant leave to appeal against conviction, allow the
appeal, set aside the verdict in the court below and order that a verdict of acquittal be entered.
NEAVE JA:
I agree.
BELL AJA:
I also agree.
BUCHANAN JA:
The order of the Court is that the application for leave to appeal against conviction is granted.
The appeal is treated as instituted instanter and is allowed.
The verdict of the Court below is set aside and it is ordered that a verdict of acquittal be entered.
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