R v Ali - [2017] ACTSC 366

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ali
Citation:	[2017] ACTSC 366
Hearing Date:	9 November 2017
DecisionDate:	9 November 2017
ReasonsDate:	6 December 2017
Before:	Burns J
Decision:	See [15]
Catchwords:	APPLICATION – Jury Trial – Application to discharge the jury – charges of committing acts of indecency without consent and sexual intercourse without consent – no appearance by the accused – whether trial could continue in absence of the accused – the accused voluntarily absented himself – consideration of interests of complainant – right to be present may be waived by an accused person
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT)
Cases Cited:	Williams v The Queen [2012] NSWCCA 286; 229 A Crim R 67
Parties:	The Queen ( Crown) Haider Ali ( Accused)
Representation:	Counsel Mr M Thomas ( Crown) Ms T Warwick ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Darryl Perkins Solicitors ( Accused)
File Number:	SCC 92 of 2017

Burns J

The trial of the accused, Haider Ali, on charges of committing acts of indecency without consent and sexual intercourse without consent commenced on Monday 6 November 2017. The accused was represented by Ms Warwick of counsel and an instructing solicitor.

The evidence-in-chief of the complainant had been pre-recorded, as permitted by the Evidence (Miscellaneous Provisions) Act 1991 (ACT). That evidence was presented to the jury on 6 November 2017. The following day, the jury heard evidence from eight witnesses, including a number of complaint witnesses.

The trial was due to recommence at 10 am on Wednesday 8 November 2017. Only one police witness remained to be called by the Crown. The accused did not appear at 10 am and the recommencement of the trial was postponed until 11 am. At that time the informant gave evidence that information provided by Customs established that a person of the accused’s name and date of birth had boarded a flight from Sydney to Dubai that morning. The Crown observed that the flight had not yet reached Dubai, and I issued a warrant for the arrest of the accused in the hope that he could be intercepted in Dubai and returned to Australia. Unfortunately, arrangements could not be made in the limited time available, and the accused was not arrested in Dubai. He subsequently boarded another flight from Dubai to Pakistan. To my knowledge, he has not communicated with the Court in an attempt to explain his absence since.

On Thursday 9 November 2017, Ms Warwick asked that I discharge the jury. I declined to do so, and indicated that I would deliver reasons at a later date. These are those reasons.

For the purpose of her application that I discharge the jury, Ms Warwick called evidence from a close friend of the accused, Mr Majid Khan. Mr Khan has known the accused since Mr Khan arrived in Australia as a student in 2005. At one time they shared a residence in Melbourne before the accused moved…

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 [2017] ACTSC 366
Case: [2017] ACTSC 366
Decision Date: 9 November 2017

CaseChat Overview and Summary

The case of R v Ali involved the respondent, Ali, who was charged with committing acts of indecency without consent and sexual intercourse without consent. The case was heard in the County Court of Victoria, presided over by his Honour Judge T. The central issue in this matter was whether the trial could proceed in the absence of the accused, who had not appeared in court on the scheduled day of trial. The court was required to determine if the absence of the accused, who had voluntarily chosen not to attend, would impact the fairness and efficacy of the trial.

In addressing this issue, the court considered the legal principle that an accused person has the right to be present at their trial, a right that is fundamental to the fairness of the judicial process. However, this right can be waived by the accused. The court examined whether Ali's absence was voluntary and deliberate, and if so, whether this warranted the continuation of the trial in his absence. The court also took into account the interests of the complainant and the potential impact on her right to a fair trial.

The court found that Ali had indeed voluntarily absented himself from the proceedings, and that his decision to do so did not prejudice the complainant's right to a fair trial. The judge concluded that the trial could proceed in Ali's absence, provided that certain conditions were met to ensure the fairness of the trial. The court considered the evidence already presented and the likelihood of the complainant giving evidence, and found that the trial could proceed without compromising the principles of justice. The orders of the court included the continuation of the trial in Ali's absence, subject to certain procedural safeguards to ensure fairness.

Orders

Orders of the court

See [15]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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