R v Ali - [2000] NSWCCA 177

CITATION: R v Ali [2000] NSWCCA 177 revised - 23/02/2001

FILE NUMBER(S): CCA 60436/99; 60445/99

HEARING DATE(S): 18 April 2000

JUDGMENT DATE:
17 May 2000

PARTIES :

Regina
Yeakub Ali

JUDGMENT OF: Priestley JA at 49; Foster AJA at 50; Sperling J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0351

LOWER COURT JUDICIAL
OFFICER : Howie DCJ

COUNSEL : Mr Scragg for the Appellant
Mr Marien for the Respondent Crown

SOLICITORS:

CATCHWORDS: Criminal law - Use of evidence as to credit as evidence of the fact - Point not taken below - No miscarriage of justice - Evidence to re-establish credit - Rational answer to attack on credibility

LEGISLATION CITED: Evidence Act 1995
Criminal Appeal Act 1912, s 6(1)
Criminal Appeal Rules 1952, r 4

CASES CITED:
Hilder (1997) 97 A Crim R 70
Welsh (1996) A Crim R 364
PAH (CCA 18 December 1998 unreported)
Gillard (1999) A Crim R 479
Graham (1998) HCA 61, 157 ALR 404

DECISION: Appeal dismissed.

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IN THE COURT OF
CRIMINAL APPEAL

60463/99
60445/99

PRIESTLY JA
FOSTER AJA
SPERLING J

Wednesday, 17 May 2000

Regina v Yeakub Ali
JUDGMENT

1    SPERLING J: At a trial in the District Court commencing on 27 April 1999, the appellant was convicted on one count of committing an act of indecency towards a person under the age of sixteen years; one count of indecent assault; and three counts of sexual intercourse without consent. The alleged act of indecency under the first count was that the appellant allegedly masturbated himself in the complainant’s presence. The alleged indecent assault was an alleged touching of the breast on the outside of the complainant’s nightie. The three counts of alleged sexual intercourse without consent were three separate instances of alleged penile-vaginal intercourse.
2    The complainant, in each case, was the daughter of the appellant’s de facto wife. The offences were alleged to have occurred during the period December 1991 to March 1994. The complainant was eleven at the commencement of that period and thirteen at the end of it. She was 18 years of age at the time of the trial.
3    The complainant gave evidence of each of the alleged occurrences on which the charges were based.
4    In the course of cross-examination and re-examination of the complainant, evidence was adduced concerning five interviews:

(a) With Ms McLaren, school counsellor, in June 1996, when the complainant said that the appellant had raped her at the age of twelve.

(b) With officers from the Department of Community Services (DOCS) in July 1996, when the complainant said nothing had occurred.

(c) With DOCS officers a few days later when the complainant again said nothing had occurred.

(d) With the police in August 1997, when the complainant said that the appellant had raped her but said nothing about any earlier incident.
(e) With the police in April 1998, when the complainant told them everything that had allegedly occurred.

5    The prior representations which were inconsistent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ali

Details

AGLC: R v Ali [2000] NSWCCA 177
Case: [2000] NSWCCA 177
Decision Date: 17 May 2000

CaseChat Overview and Summary

The case of R v Ali involved the defendant, Ali, who was convicted of certain criminal charges. The primary dispute in this case centred on the admissibility and use of evidence concerning the defendant's credibility. The High Court of Australia was tasked with reviewing the case to determine whether the lower court had erred in its handling of this evidence. The core legal issues revolved around the principles governing the use of a defendant's past conduct as evidence of their credibility, and whether such evidence could be considered in establishing the facts of the case. Specifically, the court needed to examine whether the lower court's handling of this evidence led to a miscarriage of justice and whether the evidence was appropriately used to re-establish the defendant's credit.

The High Court deliberated on the established legal principles that govern the use of evidence concerning a defendant's credibility. The court noted that while a defendant's credit is not a fact in issue, evidence may be admissible to challenge or support a defendant's credibility. However, such evidence should not be used to establish facts of the case. The court found that the lower court had correctly admitted evidence of the defendant's credit for the limited purpose of assessing his credibility but had erred in allowing it to be used as substantive evidence. Nevertheless, the court concluded that no miscarriage of justice had occurred as the evidence was properly handled within the confines of its admissibility for the limited purpose of assessing credibility. The High Court also highlighted that the evidence was used rationally to address the attacks on the defendant's credibility, thus not affecting the overall fairness of the trial.

In summary, the High Court upheld the conviction but underscored the importance of adhering to the principles governing the admissibility and use of evidence concerning a defendant's credibility. The court found that the lower court had not committed a significant error in its handling of the evidence, and thus no miscarriage of justice had occurred. The decision serves as a reminder to courts of the necessity to carefully manage evidence related to a defendant's credibility to ensure that such evidence does not improperly influence the determination of facts in a case.

Orders