R v Ali

[2025] QCA 164

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ali [2025] QCA 164

PARTIES:

R
v
ALI, Tariq
(appellant)

FILE NO/S:

CA No 36 of 2023
DC No 48 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Toowoomba – Date of Conviction: 9 March 2023 (Smith DCJA)

DELIVERED ON:

5 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2025

JUDGES:

Mullins P and Boddice and Bradley JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after trial before a jury of having unlawfully and indecently assaulted a female complainant – where the indictment alleged one count of unlawful indecent assault – where that assault was particularised as kissing the complainant on the face and/or neck, one or more times without her consent – whether the jury’s verdict is unreasonable and cannot be supported by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant submits that “sexual intention” or “sexual gratification” are not elements of an offence of indecent assault – whether the trial judge erred in directing the jury on “sexual intention” and “sexual gratification”

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, applied
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied
R v McGrady[2020] QCA 192, cited

COUNSEL:

R Salehkon (sol) for the appellant
M B Lehane for the respondent

SOLICITORS:

Toowoomba Multicultural Legal Service Inc for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P:  I have undertaken an independent assessment of the evidence adduced at the trial and agree with Boddice JA’s conclusion that the verdict of the jury was not unreasonable.  I otherwise agree with the reasons of Boddice JA and that the appeal should be dismissed.

2. BODDICE JA:  On 9 March 2023, a jury found the appellant guilty of having unlawfully and indecently assaulted a female complainant on 16 August 2020.

3. The appellant appeals that conviction, relying on four grounds.

4. First, that the jury’s verdict is unreasonable and cannot be supported by the evidence.  Second, that the trial judge erred in refusing a submission of no case.  Third, that the trial judge erred in directing the jury on “sexual intention” and “sexual gratification”.  Fourth, that there has been a miscarriage of justice by reason of the trial judge failing to properly, or adequately direct the jury on the relevance of the complainant’s intoxication to her reliability and credibility.

   Indictment

5. The indictment alleged one count of unlawful indecent assault.  That assault was particularised as kissing the complainant on the face and/or neck, one or more times without her consent.

   Evidence

   Complainant

6. On the evening of 15 August 2020, the complainant went with some friends to listen to a live band.  That performance finished around midnight.  The complainant drank a number of vodka drinks and also a shot.  After the concert ended the complainant went to a hotel.  The complainant’s friends decided to leave as there was a line outside the hotel for entry.  The complainant saw other friends waiting in the line.  She entered the hotel with those friends.  The complainant consumed more alcohol.  After some hours, the complainant left with those people to travel to another nightclub.  There she consumed one more alcoholic drink.  By that stage the complainant felt drunk.

7. At the nightclub the complainant saw her ex-partner.  She realised that he was leaving with another female.  The complainant was upset as they had not broken up long before.  She told her friends she was going to the bathroom.  Whilst she was in the bathroom, she texted her ex-partner.  Shortly after, security called out that the nightclub was closing.  The complainant exited the front door of the nightclub.

8. When the complainant went outside, she felt drunk.  There was a taxi rank in front of the nightclub.  She entered the first taxi and sat in the front passenger seat.  The complainant gave the taxi driver her address.  The complainant began to cry.  She explained to the driver that she had seen her ex-partner leaving with another woman.  The complainant apologised for crying so much.  The taxi driver asked if there was someone at home.  The complainant explained she had two children, but they were at their father’s house.

9. When the taxi arrived at the complainant’s house, the taxi driver helped her out and gave her a hug.  The complainant described it as an “arms around, supporting type gesture”.[1]  The taxi driver then escorted the complainant into her house.  The complainant could not remember walking through the front door or down the hall.  She next remembered being seated on her bed with the taxi driver on top of her lap, pushing her shoulders back so that her head was lying on the bed.  The taxi driver started kissing her on and around her face and neck, specifically the cheeks, chin and neck area.  The complainant did not think he kissed her lips as she was turning her head.  The taxi driver was making a sound as if to settle and quieten her down.  She tried to act more drunk.  She intimated that it was not right, but could not remember the words she used to the taxi driver.  She believed she said no.  The complainant said she did not consent to the taxi driver kissing her face or neck.

   [1]AB 106/47.

10. The complainant could not remember how long it took for the kissing to stop.  The taxi driver had his mobile phone in his hand.  He was asking the complainant to give him her number.  The complainant changed the last digit so that it was an incorrect number.  The taxi driver asked her to repeat the number which she did, giving the same incorrect number.  As the taxi driver left, he put her house keys on the bedside table.

11. The complainant texted a female friend and her ex-partner.  She did not remember contacting a third friend, but said he turned up the next day because she had messaged him as well.  The female friend caught an Uber to her house.  The ex-partner also turned up at the house.  When they arrived at the house, the complainant was still feeling a little drunk.  The ex-partner told the complainant that she needed to report it.  He called triple-zero and spoke to emergency services.  He then gave the telephone to the complainant.

12. A recording of the conversation with the triple-zero operator was played to the jury.  The complainant’s ex-partner told the operator that his “ex-missus” had been raped by a taxi driver.  The complainant immediately corrected him saying, “I haven’t been raped, he didn’t rape me”.[2]  The complainant gave her name and address and repeated that she had not been raped.  She told the operator that she had taken a taxi home; that the taxi driver had taken her inside the house; that he had asked her whether anyone else was at the home; she had told him that her children were at their father’s house; that the taxi driver started kissing her and climbed on top of her; that she was nervous and had said no; that she was just upset that she had seen her ex-partner with another girl; and that she did not know if she had paid for the taxi.  The complainant described the driver as “an Indian guy” in his “late thirties”.

    [2]AB 328/30.

13. The complainant told the operator she wanted to make a complaint of sexual assault.  The complainant further told the operator that she had been crying and had apologised to the taxi driver, telling him that she had seen her ex-partner.  The taxi driver took her inside to her bedroom, after parking the taxi out the front of her house.  The complainant confirmed that no intercourse had occurred and that the taxi driver was kissing her whilst on top of her.  The complainant told the operator she had a lot to drink.  The operator said that police would contact the complainant.

14. Sometime after that telephone call, a male and female police officer arrived at the complainant’s house.  Prior to their arrival, the complainant had changed into pyjamas.  She could not remember if she had taken a shower.  Another police officer came to her house later that day, to take some swabs from her face.  The complainant later gave a DNA sample to police.

15. In cross-examination, the complainant confirmed that she had  broken up  with her ex-partner about a month or so prior to that night; that he had been like a stepfather to her children; that they had been together for around two and a-half years and had lived together for approximately six months of that time; and that this night had been the first opportunity she had since living at her new residence to go out.  The complainant accepted that when she left the nightclub, she was affected by alcohol.  She agreed she was crying in the taxi and was quite upset.  She agreed she could not remember paying for the taxi and that she had made a joke of it with her ex-partner, saying she had received a free cab ride home.  She accepted there were things she could not remember because of her alcohol intake.  She did not remember being unsteady on her feet when she left the taxi, being able to open the front door, or dropping her keys.  She did remember walking towards the front door, but recalled feeling she was being led and escorted by the taxi driver.  She did remember apologising several times for being so upset.  The complainant strongly disagreed with the suggestion that she would have asked the taxi driver for his phone number.

16. The complainant accepted that the first message she sent to her ex-partner, was at about 3.27 am on 16 August 2020 and that the first text message to her female friend was at 3.38 am.  She could not remember whether the subject of the first text message to her female friend was about seeing her ex-partner take somebody else home.  She agreed that when her ex-partner and female friend arrived at her home she was sobbing.

17. The complainant accepted that she first gave a statement to police on 19 August 2020.  She prepared another statement in March 2021.  That statement related to a visit by police in January 2021, requesting that they take photographs of her mobile phone.  By that stage, the complainant had purchased a new phone.  Her old data did not transfer over to the new phone.

18. The complainant accepted that after she had seen her ex-partner with another woman, she had sent him a text, “You know you and I are never going to be again now”.[3]  He responded by text that he was not taking anyone home.  That happened before 3.23 am.  Later that morning, the complainant had sent a text “I just had a cab take me.  Rape men.  Rape me.  Not joking”.[4]  The complainant agreed there was no allegation that she was raped that night.  The complainant said she made that clear as soon as any question of it was raised, that a mobile phone auto corrects, and that she had consumed a few drinks and was emotional.  She agreed that she had sent her ex-partner another message, “And he said he’s walked me in.  He’s kissing me.  He asked who lives here.  He left though.  I said no.  Free cab ride”.[5]  She agreed that she had later texted him, “Whatever.  You don’t care anyway”.[6]  That was an attempt to make her ex-partner feel guilty.

    [3]AB 146/44.

    [4]AB 148/23.

    [5]AB 150/5.

    [6]AB 150/25.

19. The complainant agreed that those texts included reference to the complainant having been intimate with her ex-partner on 15 August 2020.  She also texted him “Legit feel like a piece of dirt.  The cab driver [walked] me into the house.  He took me to the bed.  He was kissing me. … The only reason he stopped I said no, I’m sober.  I’m sober”.[7]  The complainant did not know whether she was trying to say she was not sober.  The complainant wanted his support.  She denied making up the allegation about being kissed by the taxi driver, to get back at her ex-partner.  The complainant agreed that her ex-partner responded, “Can we please talk about this sober?” and that she responded, “I seriously got raped”.  The complainant said she meant to say “almost”.

    [7]AB 151/45 – AB 152/15.

20. The complainant agreed that she also messaged her female friend, telling her that a taxi driver “…tried to molest me”.  She texted another male friend stating that the taxi driver took her inside while she was crying, put her into bed and started kissing her a lot.  She asked that male friend in a text message, “He tried to molest me, [male friend], what do I do?”  The complainant said she wanted the support of a friend.

    Preliminary complaint

21. The complainant’s female friend received a text shortly before 4.00 am on 16 August 2020 from the complainant saying the taxi driver had kissed her at home.  When she telephoned the complainant, the complainant was upset and crying.  The female friend went over to the complainant’s house, arriving at about 4.35 am.  The complainant told the female friend that after she had seen her ex-partner with another girl, she had left in the first taxi waiting outside.  She was crying to the taxi driver about her night.  The taxi driver started to ask her strange questions like who was at home and whether the children were at home.  When they arrived at the house, the taxi driver took her to the bedroom and kissed her and touched her on the bed.  At some point, she said “stop” and he left.  Shortly after that conversation, the complainant’s ex-partner arrived at the house.  They agreed they should call police.

22. In cross-examination, the female friend agreed that prior to receiving the message about a taxi driver, she had received a message from the complainant about being upset because she had seen her ex-partner with someone else at the nightclub.

23. The complainant’s ex-partner had been in a relationship with the complainant for two years, until it ended around May 2020.  They continued to see each other as friends thereafter.  The ex-partner went to a nightclub on the evening of 15 August 2020.  He saw the complainant at the nightclub, just before midnight.  They spoke briefly.  He was with another female at the time.  He and the other female left the nightclub together.  When he left, he noticed that the complainant was distressed and upset.  Early the following morning he received text messages from the complainant.  He decided to go to her home.  When he arrived, the complainant’s female friend was at the house.  The complainant was upset.  She told him that she had been assaulted.  He said the complainant said that she had been raped.  She went on to say that she had been kissed and forcibly put on the bed.  The ex-partner decided to telephone the police.

24. In cross-examination, the ex-partner agreed that the text messages he had received from the complainant, described how she was upset that she had seen him with another girl.  He agreed that he had been intimate with the complainant earlier on that same day.  He did not know she was going to the nightclub that night.  He found out when she sent him a message about being at a particular place and then going onto a nightclub.  It was usual for the complainant to send messages updating him about her whereabouts if she was out for the night.  On some occasions they would meet up.  He did not do anything in response to the complainant’s message.  The ex-partner accepted that the fact that the complainant told him she had been raped, impacted on his decision to telephone police.

25. The complainant’s male friend received some text messages from the complainant in the early hours of 16 August 2020.  When he spoke to her on the telephone, she told him that the taxi driver who took her home kissed her.

    Investigation

26. The first police officers attended the complainant’s residence shortly after 5.00 am.  Their conversation with the complainant was recorded by body-worn cameras.  The complainant told police that she had a few drinks that night; that she had seen her ex-partner leaving with a girl and got a bit upset; that she entered the first taxi at the rank outside the nightclub; that the taxi driver was asking lots of questions, like who was at home and where her children were that night; that when they arrived at her home, the taxi driver drove onto the grass and said he would take her inside; that the taxi driver walked her into the house and cuddled her; that she apologised for crying and he said that was okay; that the taxi driver put her in bed, then climbed onto her and started kissing her and pushing her down onto the bed; and that she ended up saying that she was really drunk.  The complainant described herself as feeling really scared.  She did not know what was going to happen.

27. The complainant said the taxi driver was kissing her all over her face.  He had her pinned down onto the bed.  She said, “no, this isn’t right”.  When he left she called her friends and told them that she thought the taxi driver took it a bit too far.  She said he was on top of her for some minutes.  The complainant told the police officer that she acted really drunk.  She also told police she did not pay the taxi driver.  She said the driver asked for her phone number.  She gave him a fake number.  He persisted about giving a number, whilst he was on top of her, on the bed.  She gave him the same number twice, but with one digit being incorrect.

28. The complainant described the taxi driver as an Indian male, in his late 30s.  He parked outside the front of the gate and said he would walk her into her home.  He cuddled her at first.  She apologised for being upset.  He walked her inside the bedroom.  He climbed on top of her and was kissing her all over the face.  He did not touch her anywhere else.

29. The police officer said that the complainant read out to him the text messages she had sent to her ex-partner and female friend.  He did not take photographs of those messages.

30. In cross-examination, the police officer agreed that the complainant’s face was of interest to him, as were the complainant’s clothes and keys.  He wanted to preserve them in case they needed to be tested for DNA.

31. The investigating officer first spoke to the complainant at about 8.30 am on 16 August 2020.  He had attended her residence with a Scenes of Crime officer.  He arranged for that officer to take some swabs from her face and a DNA sample.  He was aware text messages had been sent.  He does not recall seeing them on that day, or prior to taking a statement from the complainant on 19 August 2020.  He later obtained CCTV footage from the taxi company depicting the complainant and the appellant in the front seat of the appellant’s taxi.  A search warrant was executed on the appellant’s home on 21 August 2020.  The appellant’s mobile phone was seized and found to contain a contact for the complainant with a mobile telephone number.  A DNA sample was also obtained from the appellant.

32. In cross-examination, the investigating officer agreed that prior to attending the residence, information had been provided that there was an allegation of kissing on the face.  That was why he had a Scenes of Crime officer take swabs of the complainant’s face.  There was a discussion about the complainant’s clothes, but once he arrived at the scene, he understood that the clothes had been taken off.  They were no longer of interest forensically.  He told the complainant to keep the text messages.  When he subsequently followed up to obtain copies of the messages, the complainant told him she had sold the phone and the messages did not transfer over.  It was for that reason that he had the complainant prepare a second statement in March 2021.  The ex-partner was able to provide copies of his messages, as was the male friend.

33. The Scenes of Crime officer attended the complainant’s residence and collected a swab from the complainant’s face and forehead.  He did not take any other swabs.

1. In cross-examination, the Scenes of Crime officer agreed that there had been a discussion with the investigating officer about the need to swab her face.  There was also a discussion about bed clothes and keys.  He did not do any trace DNA sampling of the keys or other areas.  Any kind of trace DNA transfer would be negated by the fact that the complainant had spent time in the taxi.

2. A forensic scientist tested a swab of the complainant’s face, cheeks and forehead.  The swab indicated the presence of DNA from at least four contributors.  That being so, reference DNA sample comparisons were not undertaken.

3. At the conclusion of the Crown case, the appellant elected to neither give nor call evidence.

   Consideration

   Ground 1

4. The determination of a ground of appeal that a jury verdict is unreasonable and not supported by the evidence requires this Court to independently assess the record to determine whether, on a consideration of the evidence as a whole, it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt.[8]  Due regard is to be accorded to the role of a jury in the criminal trial.[9]  However, if there are inconsistencies, discrepancies, inadequacies or other evidence which, even allowing for the advantages enjoyed by the jury, are of such a nature that a reasonable doubt ought to have been entertained, the verdict will be considered unreasonable.[10]

   [8]Dansie v The Queen (2022) 274 CLR 651 at [35] (Dansie).

   [9]Dansie at [9] citing M v The Queen (1994) 181 CLR 487 at 493.

   [10]Pell v The Queen (2020) 268 CLR 123 at 145, [39].

5. The appellant submitted that it was not open to the jury to find him guilty of sexual assault, as kissing, even without consent, was insufficient.  There must be touching of breasts or genitalia to constitute the offence.

6. There is no substance in the appellant’s contentions.  The offence of sexual assault, relevantly, is committed if a person unlawfully and indecently assaults another person.  An assault is unlawful, if there is an application of force, to another, without that person’s consent.  An assault is indecent if the act offends against currently accepted standards of decency.  Indecency must always be judged in the light of time, place and circumstances.

7. In the present case, the issues for the jury were whether the appellant had kissed the complainant’s face and/or neck; whether that kissing of the face and neck was without the complainant’s consent; and whether that kissing was indecent.

8. As to the first two issues, there was evidence from the complainant of the appellant kissing her face and neck, without her consent.  The complainant maintained a consistency in that account.  That consistency was supported by preliminary complaint evidence from her ex-partner and two friends and by her account to the triple-zero operator and the first responding police.  Nothing in the cross-examination of the complainant supported a conclusion that the jury had to have a reasonable doubt as to the reliability and credibility of the complainant’s account of that kissing.

9. The element of indecency arose for consideration by the jury because the time, place and circumstances of that kissing to the face and neck, was capable of being accepted by the jury as offending against currently accepted standards of decency.  The appellant, a taxi driver, had, on the complainant’s evidence, asked her questions about whether a person was at home, in circumstances where she was overtly upset and distressed and suffering significant intoxication.  Thereafter, he had entered her home, and taken her to the bedroom, climbed on top of her, pushed her back on the bed and kissed her face and neck, without her consent.  Those circumstances plainly gave rise to events which may be regarded by the community as indecent.  It offended against currently accepted standards of decency.

10. A consideration of the record as a whole, supports a conclusion that it was open to the jury to be satisfied of the appellant’s guilt of the offence of sexual assault, as particularised by the Crown, beyond reasonable doubt.  The verdict of the jury was not unreasonable.

    Ground 2

11. The appellant submits that the trial judge erred in rejecting a submission of no case, for similar reasons as those contended to support a conclusion that the verdict of the jury was unreasonable.

12. Once it is accepted that it was open to the jury to be satisfied of the appellant’s guilt of the offence, as particularised by the Crown, beyond reasonable doubt, there is no basis upon which the trial judge could properly uphold a submission of no case.

    Ground 3

13. The appellant submits that sexual intention or sexual gratification are not elements of an offence of indecent assault.  Accordingly, the trial judge, it is submitted, erred in directing the jury that the Crown must prove that the appellant had a sexual intention at the time of the assault, that is, that he had some intention to obtain sexual gratification from the act.

14. In support of this submission, the appellant submits that the “sexual assault” is no offence in Queensland and that “until our Parliament amends s 359(1)(a) of the Criminal Code 1899 (Qld) the section remains as it was enacted in 1899 following legislation in the reign of Queen Victoria and the section is to be applied with special reference to s 23 of the Code on criminal responsibility which makes sexual intent, sexual gratification and sexual motive immaterial when considering the ‘act’ which constitutes the offence”.

15. There is no merit in this contention.  “Sexual assault” is an offence under the Criminal Code.  Its elements are set out in that Code.  The indictment correctly identified that offence and its requisite elements.

16. Further, whilst a direction on the motive of an accused is not necessary to be given in every case where indecency is an element of the offence,[11] where an issue for the jury is whether the circumstances in which the alleged indecent assault occurred may be capable of casting doubt upon the sexual quality of the alleged assault, the motive of an alleged offender must be a matter for the jury’s deliberation and decision.[12]

    [11]R v McGrady [2020] QCA 192.

    [12]See R v Jones (2011) 209 A Crim R 379.

17. In the present case, the circumstances in which the appellant came to be at the complainant’s house, did give rise to an issue for the jury as to whether what had occurred had a sexual connotation.  For that reason, there was no error on the part of the trial judge in directing the jury that a matter for consideration was whether the assault had been committed by the appellant, in circumstances of sexual gratification.

18. When regard is had to the fact that the appellant did not know the complainant and, on the complainant’s account, not only entered her bedroom, but climbed on top of her, pushing her down on the bed, before kissing her face and neck, without her consent, it was open to the jury to be satisfied beyond reasonable doubt, that those acts were committed by the appellant for sexual gratification.  Such a conclusion rendered the appellant’s assault of the complainant by kissing her face and neck without her consent, indecent.

    Ground 4

19. The appellant submits that there has been a miscarriage of justice by reason of the trial judge’s failure to properly, or adequately, direct the jury on the relevance of intoxication of the complainant, in circumstances where there were “exaggerations and inconsistencies in her evidence in that the jury could draw adverse inference against her credibility as a witness and the reliability of her evidence”.  In support of that submission, the appellant relies on observations in R v Baltensperger.[13]

    [13][2004] SASC 392 at [46]–[49].

20. There is no merit in the appellant’s contentions.

21. The trial judge specifically drew to the jury’s attention, evidence of the complainant’s intoxication.  In doing so, the trial judge specifically warned the jury that they would need to scrutinise the complainant’s evidence with care, before acting upon it.[14]  There was no requirement on the trial judge to do more.

    [14]AB 60/35–50.

22. Second, it was not the function of the trial judge to suggest that inferences, adverse to a witness, could be drawn from such evidence.  The issue for the jury was whether they accepted the complainant as a witness of reliability and credibility.  The jury was properly directed that they needed to accept the complainant to be such a witness before they could be satisfied of the appellant’s guilt, beyond reasonable doubt.

    Orders

23. I would order:

    1.The appeal be dismissed.

24. BRADLEY JA:  I have assessed the sufficiency and quality of the whole of the evidence, in the context in which the appeal was brought, and reviewed and assessed the features of that evidence that support the appellant’s case and the Crown’s case on appeal in their respective submissions.

25. I agree with the analysis by Boddice JA of the evidence, and with his Honour’s conclusion that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of unlawful and indecent assault.  I also agree that, for the reasons stated by his Honour, on the whole of the evidence, it was not unreasonable for the jury to have decided there was no reasonable doubt as to the proof of the appellant’s guilt.

26. I agree with the reasons and conclusions of Boddice JA with respect to each of the three grounds of appeal raised by the appellant.

27. It follows that I concur with his Honour’s conclusion that the appeal should be dismissed.