R v Ali

Case [2022] SASC 23 11 March 2022

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SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v ALI
Criminal Trial by Judge Alone
[2022] SASC 23
Reasons for the Verdict of the Honourable Justice Bampton
11 March 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
Accused charged with murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA) and in the alternative, murder contrary to s 12A of the Criminal Law Consolidation Act 1935 (SA) – accused pleaded not guilty to murder but guilty to manslaughter and elected to be tried by Judge alone – whether the prosecution proved beyond reasonable doubt that the accused had the specific intent for murder – whether the prosecution has proved the stabbing as part of or to help commit offence of robbery – whether the prosecution has disproved a claim of right beyond reasonable doubt – whether the prosecution excluded all rational hypotheses consistent with innocence.
HELD: The accused is guilty of manslaughter by an unlawful and dangerous act.
Criminal Law Consolidation Act 1935 (SA) ss 11, 12A, 13, 131, 134, 137, referred to.
Barca v The Queen (1975) 133 CLR 82; The Queen v Baden-Clay (2016) 258 CLR 308; The Queen v Langham (1984) 36 SASR 48; R v Bedford (2007) 98 SASR 514; Arulthilakan v The Queen (2003) 203 ALR 259; R v Fuge (2001) 123 A Crim R 310; McGuiness v Police (2016) 125 SASR 413, considered.

R v ALI
[2022] SASC 23
Criminal: Trial by Judge Alone
The plea to manslaughter
The Information laid in the Supreme Court
Overview of the prosecution case
The defence case
Presumption of innocence
Elements of the offences
Murder contrary to s 11 of the Act
Murder contrary to s 12A of the Act
Elements of robbery
Elements of theft

Assessment of witnesses
Assessment of Ms Harrison’s evidence
Expert witnesses
The issue of specific intent
Circumstantial evidence
Prior inconsistent statements
Motive
The evidence
Dr Heath
Brevet Sergeant Smith
Ms Pinyon
Prof White
The evidence regarding interaction between Mr Ali and Mr Bristow before 3 February 2020
Mr Maiolo
The text messages

The evidence regarding the events of 3 February 2020
Ms Harrison’s interaction with Mr Ali and his cousin on 3 February 2020
3 February 2020

Mr Ismail’s interaction with Mr Ali and Ms Harrison 3 February 2020
Ms Harrison’s interaction with Mr Ali and Mr Bristow on 3 February 2020
Mr Chang-Shien’s interaction with Mr Bristow and Mr Ali on 3 February 2020
The evidence regarding the events of 4 February 2020
Senior Constable Bruce
Ms Harrison’s interaction with Mr Ali and Mr Bristow on 4 February 2020
Ms Hannaford
Ms Harrison’s interaction with Mr Ali after Mr Bristow was got out of the Ford
The difficulties presented by Ms Harrison’s evidence
Ms Harrison’s…

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 [2022] SASC 23
Case: [2022] SASC 23
Decision Date: 11 March 2022

CaseChat Overview and Summary

The case of R v Ali dealt with the death of Mr Bristow, with the accused, Mr Ali, facing charges related to his death. The dispute centred on whether Mr Ali's actions constituted murder or manslaughter. The court had to determine if Mr Ali had the specific intent to inflict really serious bodily harm when he committed the act that caused Mr Bristow's death. The case was heard in the Supreme Court of South Australia.

The central legal issue in this case was whether the prosecution had proven beyond reasonable doubt that Mr Ali held the specific intent to cause really serious bodily harm when he committed the act that led to Mr Bristow's death. The court had to weigh the evidence and decide if Mr Ali was guilty of murder or manslaughter. This required a careful examination of the circumstances surrounding the incident and the credibility of the witnesses, including Ms Harrison, who provided inculpatory evidence against Mr Ali.

The court carefully assessed the evidence provided by Ms Harrison and the expert witnesses, considering factors such as her background, her credibility, and the consistency of her statements. The court determined that Ms Harrison's evidence needed to be supported by other credible evidence before it could be relied upon. After evaluating all the evidence, the court found that Mr Ali had admitted his act caused Mr Bristow's death and that his act was voluntary and deliberate. However, the court was not satisfied that the prosecution had proven beyond reasonable doubt that Mr Ali had the specific intent to inflict really serious bodily harm. Consequently, the court found Mr Ali guilty of manslaughter by an unlawful and dangerous act.

The final orders of the court found Mr Ali guilty of manslaughter by an unlawful and dangerous act. The court's decision was based on the evidence presented and the legal standards for establishing the specific intent required for a murder conviction.

Orders

Orders of the court

The accused is guilty of manslaughter by an unlawful and dangerous act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In assessing the evidence of the witnesses, I have considered their evidence in the context of other evidence in the case. I have considered their evidence under cross‑examination and applied my judgement to the evidence. I can believe or disbelieve, rely or not rely upon, all or part of a witness’s evidence.Assessment of Ms Harrison’s evidence Ms Harrison gave inculpatory evidence against Mr Ali. Her evidence was that she witnessed a swinging action by Mr Ali toward Mr Bristow but did not see a knife. She had previously told police she saw a knife being swung by Mr Ali toward Mr Bristow. Ms Harrison also gave evidence that she wanted to steal the Ford. Ms Harrison’s evidence was to the effect that in early 2020 she was virtually homeless, had just broken up with a boyfriend who supplied her ice, did not have custody of her daughter born in 2018, had a significant drug addiction, had significant memory issues, and was “off the rails”.[10] At the time of giving her evidence, she appeared to have her life back on track. [10] T335.21 At the beginning of her second interview with police on 4 February 2020, she was cautioned in relation to murder. During that interview she asked police if she was “gonna get – get done with this?”.[11] It is possible she minimised her role in or was anxious to distance herself from the events of 4 February 2020. Whilst she was not charged with murder, she was subsequently convicted on 21 April 2020 of numerous offences. Three of those offences were committed on 4 February 2020, namely, driving or using a vehicle without consent, making off without payment, and unauthorised person drive vehicle on road.[11] Exhibit P25, line 422. As I stated during the trial of this matter, Ms Harrison’s evidence must be carefully scrutinised before it can be accepted as credible and reliable. Having regard to the evidence she gave; I have determined there is a danger of acting on it unless her evidence going to matters in issue is supported by other evidence I accept.Expert witnesses Expert evidence was given by the forensic pathologist, Dr Karen Heath; the forensic scientist, Rebecca Pinyon; the pharmacologist, Prof Jason White; the crime scene investigator, Brevet Sergeant Amanda Smith; and an officer in SAPOL’s digital evidence section, Senior Constable First Class Samuel Bruce. The evidence of the expert witnesses must be considered together with the evidence of other witnesses. Ultimately, I must determine what of their evidence I accept, what weight is to be given to it, and any inferences and conclusions that arise from the evidence.The issue of specific intent Mr Ali has admitted his act caused Mr Bristow’s death and that his act was voluntary and deliberate. As stated above, the question for my determination is: has the prosecution established beyond reasonable doubt that Mr Ali held the intention of inflicting (at least) really serious bodily harm when he committed the act which caused Mr Bristow’s death. If I am satisfied, Mr Ali would be guilty of murder contrary to s 11 of the Act.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Ali [2022] SASC 23

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Cases cited in this decision · 13 of 13 shown

R v Baden-Clay
[2016] HCA 35 Para 11

…t to be looked at in a piecemeal fashion, at trial or on appeal[20]. (Emphasis and footnotes in original) [12] The Queen v Baden-Clay (2016) 258 CLR 308 at [49]. [13] (1975) 133 CLR 82 at 104. [14] (1911) 13 CLR 619 at 634. [15] (1963) 110 CLR 234 at 252. [16] (1960) 102 CLR 584 at 605-606. [17] (2016) 258 CLR 308 at…
MCGUINESS v Police
[2016] SASC 133 Para 36

…out the circumstances of the stabbing, let alone draw inferences about Mr Ali’s state of mind at the time of the stabbing. [215] McGuiness v Police (2016) 125 SASR 413 at [17].…
Langham v Regina
[2006] NSWCCA 306

…n Act 1935 (SA) ss 11, 12A, 13, 131, 134, 137, referred to. Barca v The Queen (1975) 133 CLR 82; The Queen v Baden-Clay (2016) 258 CLR 308; The Queen v Langham (1984) 36 SASR 48; R v Bedford (2007) 98 SASR 514; Arulthilakan v The Queen (2003) 203 ALR 259; R v Fuge (2001) 123 A Crim R 310; McGuiness v Police (2016) 125 SASR 4…
Arulthilakan v The Queen
[2003] HCA 74

…Queen (1975) 133 CLR 82; The Queen v Baden-Clay (2016) 258 CLR 308; The Queen v Langham (1984) 36 SASR 48; R v Bedford (2007) 98 SASR 514; Arulthilakan v The Queen (2003) 203 ALR 259; R v Fuge (2001) 123 A Crim R 310; McGuiness v Police (2016) 125 SASR 413, considered.…
R v Fuge
[2001] NSWCCA 208 Para 11

…y taken and a belief cannot justify intentionally taking property of greater value.[196] [196] R v Bedford (2007) 98 SASR 514 at [37] (Gray J quoting R v Fuge (2001) 123 A Crim R 310 at [24]).…
Walden v Hensler
[1987] HCA 54 Para 10

…,[192] Brennan J referred to the common law view summarised by Stephen J, History of the Criminal Law of England :[193] [192] Walden v Henlser (1987) 163 CLR 561 at 570. [193] (1883), Vol 3, Ch XXVIII p 124. Fraud is inconsistent with a claim of right made in good faith to do the act complained of. A man who takes p…
Chamberlain v The Queen (No 2)
[1984] HCA 7 Para 11

…228 CLR 618 at 637 [46]; (footnote omitted). [20] R v Hillier (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535.…
Barker v The Queen
[1983] HCA 18 Para 10

…im of right need have no foundation in law or fact in order for it to provide a defence.[188] [188] Langham per King CJ (at 53); see also R v Lopatta (1983) 35 SASR 101 at 107. (3)The belief in the claim of right is concerned with entitlement to the property. It need not extend to a belief in the right to take the ac…
Barca v the Queen
[1975] HCA 42 Para 11

…fashion, at trial or on appeal[20]. (Emphasis and footnotes in original) [12] The Queen v Baden-Clay (2016) 258 CLR 308 at [49]. [13] (1975) 133 CLR 82 at 104. [14] (1911) 13 CLR 619 at 634. [15] (1963) 110 CLR 234 at 252. [16] (1960) 102 CLR 584 at 605-606. [17] (2016) 258 CLR 308 at [47]. [18] Peacock v The King (…
Plomp v The Queen
[1963] HCA 44 Para 11

…original) [12] The Queen v Baden-Clay (2016) 258 CLR 308 at [49]. [13] (1975) 133 CLR 82 at 104. [14] (1911) 13 CLR 619 at 634. [15] (1963) 110 CLR 234 at 252. [16] (1960) 102 CLR 584 at 605-606. [17] (2016) 258 CLR 308 at [47]. [18] Peacock v The King (1911) 13 CLR 619 at 661, quoted in Barca v The Queen (1975) 133…
Thomas v The Queen
[1960] HCA 2 Para 11

…n-Clay (2016) 258 CLR 308 at [49]. [13] (1975) 133 CLR 82 at 104. [14] (1911) 13 CLR 619 at 634. [15] (1963) 110 CLR 234 at 252. [16] (1960) 102 CLR 584 at 605-606. [17] (2016) 258 CLR 308 at [47]. [18] Peacock v The King (1911) 13 CLR 619 at 661, quoted in Barca v The Queen (1975) 133 CLR 82 at 104. [19] R v Hillier…
Peacock v The King
[1911] HCA 66 Para 11

…20]. (Emphasis and footnotes in original) [12] The Queen v Baden-Clay (2016) 258 CLR 308 at [49]. [13] (1975) 133 CLR 82 at 104. [14] (1911) 13 CLR 619 at 634. [15] (1963) 110 CLR 234 at 252. [16] (1960) 102 CLR 584 at 605-606. [17] (2016) 258 CLR 308 at [47]. [18] Peacock v The King (1911) 13 CLR 619 at 661, quoted…
[1938] 2 KB 264
[1938] 2 KB 264 Para 10

…d 79 at 89)); “the fact that it is wrongheaded does not matter”: R v Gilson and Cohen ([1944] 29 Cr App R 174 at 180). In Rex v Bernhard ([1938] 2 KB 264 at 270) the Court of Criminal Appeal said that a person has such a claim of right “if he is honestly asserting what he believes to be a lawful claim, even though…

Legislation cited in this decision · 1

Criminal Law Consolidation Act 1935 (SA)
11, 12A, 13, 131, 134, 137 7 mentions (from Para 9)