R v Ali

Case [2017] QCA 300

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ali [2017] QCA 300

PARTIES:

R
v
ALI, Mustapha Abdillah
(appellant)

FILE NO/S:

CA No 296 of 2016
DC No 743 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 28 October 2016 (Sheridan DCJ)

DELIVERED ON:

8 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

4 May 2017

JUDGES:

Sofronoff P and Philippides JA and Atkinson J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –– VERDICT UNREASONABLE OR INSUPPORTABLE – APPEAL DISMISSED – where the appellant was convicted after trial of rape by penile penetration and acquitted of rape by digital penetration – where a pretext phone call was admitted into evidence – where the complainant’s flatmates gave preliminary complaint evidence – where the complainant at all material times suffered from bipolar disorder and depression – where the complainant was said to be a person who was prone to delusional thinking – where the complainant had admitted to using cannabis – where the complainant had given evidence of occasions of consensual sexual intercourse with the appellant – where the appellant sought to rely on the sentencing judge’s observations in the sentencing remarks regarding the complainant’s credibility – whether the verdict was unreasonable or cannot be supported by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where appellant was convicted after trial of rape by penile penetration and acquitted of rape by digital penetration – where the conduct the subject of the counts occurred on different nights – where the complainant gave evidence that she repeatedly said “no” in relation to the penile penetration count but not in relation to the digital penetration count – where mistake of fact as to consent was not in issue in relation to the penile penetration count – whether the different verdicts were logical with reference to the evidence – whether the verdicts were impermissibly inconsistent

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where a pretext call between the appellant and the complainant was admitted into evidence – where the pretext call allegedly included an apology and admissions by the appellant – where the appellant contended that the pretext call lacked probative value as there was no supporting evidence as to whether the statements were referable to the conduct the subject of the conviction – where no objection to the evidence was raised at trial – whether the trial judge erred in failing to exclude the evidence as a matter of discretion

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant contended that the trial judge failed to give a Markuleski direction in relation to inconsistent verdicts – where the appellant contended that the trial judge failed to direct the jury to have regard to the complainant’s use of…

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AGLC
R v Ali [2017] QCA 300
Case
[2017] QCA 300
Decision Date

CaseChat Overview and Summary

In the case of R v Ali, the appellant, Ali, appealed against his conviction of rape by penile penetration, arguing that the verdict was unreasonable or insupportable by the evidence, and that there were other errors made by the trial judge. The appeal was heard by the Supreme Court of Queensland. The primary issues for the court to determine were whether the verdict was unreasonable or could not be supported by the evidence, whether the verdicts were impermissibly inconsistent, whether there was an improper admission or rejection of evidence, and whether there was a misdirection or non-direction by the trial judge.

The court considered the evidence presented at trial, including the complainant’s evidence and the appellant’s contentions regarding inconsistencies in the verdicts. The court found that the verdicts were not inconsistent as they related to different instances of sexual conduct occurring on different nights. The court also found that the pretext call evidence was properly admitted and that the trial judge did not err in failing to exclude it. Furthermore, the court held that there was no miscarriage of justice caused by the trial judge’s directions to the jury, including the failure to give a Markuleski direction, failing to direct the jury to consider the complainant’s use of cannabis, and failing to adequately direct the jury on the weaknesses in the complainant’s evidence.

The court ultimately dismissed the appeal and upheld the conviction. The court found that the evidence was sufficient to support the verdict and that there was no miscarriage of justice caused by the trial judge’s directions to the jury. The appeal was therefore dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant’s amended Notice of Appeal raised the following grounds for setting aside the verdict on count 2:1.The verdict on count 2 was inconsistent with the verdict on count 1.2.The verdict on count 2 was unreasonable or cannot be supported on the evidence.3.The admission of evidence of the pretext telephone call between the appellant and the complainant resulted in a miscarriage of justice.4.The trial judge erred in failing to direct the jury in accordance with the principle in R v Markuleski[1] and, as a result, a miscarriage of justice has occurred.5.The trial judge erred in failing to direct the jury to have regard to the complainant’s use of cannabis as part of the direction given in accordance with Bromley v The Queen[2] and, as a result, a miscarriage of justice has occurred.6.The trial judge erred in failing to direct the jury adequately as to the specific weaknesses in the complainant’s evidence in the course of warning the jury about the danger of acting on the complainant’s evidence and, as a result, a miscarriage of justice has occurred.7.The trial judge erred in failing to direct the jury adequately as to the permissible use of the evidence of the pretext call and, as a result, a miscarriage of justice has occurred.[1](2001) 52 NSWLR 82; [2001] NSWCCA 290.[2](1986) 161 CLR 315.Complainant’s evidence The complainant gave evidence that she first met the appellant on 14 February 2012, at a nightclub where she had gone with her flatmates, Benjamin Jones and Nicole Gillard. At the time, she was 23 years of age. She commenced a sexual relationship with the appellant and he would regularly stay at her unit at Woolloongabba.[3] She occupied one bedroom of the unit and her flatmates occupied the other. The appellant went to New South Wales for a month returning at the end of March 2012 and the relationship continued. The appellant described the relationship as “always [involving] arguments about previous relationships”.[4][3]AB at 137; 138.[4]AB at 139. The complainant’s evidence was that, on the evening of 11 or 12 April 2012, the appellant came home drunk at 9.00 or 10.00 pm and kept drinking.[5] The appellant became “agitated” because she asked him where he had been. They had an argument about the complainant’s previous sexual relationships.[6] The appellant took a swig of wine and spat it in her face. The complainant said she had had enough. She grabbed the appellant’s bags out of her room, packed up his things and put his bags on the porch.[7] The appellant told her “get those bags off the porch, you bitch, it’s raining”. The complainant brought the bags back into the kitchen and asked the appellant to leave, which he refused to do. The appellant said he had nowhere to go. The complainant sought an apology from the appellant for spitting at her. At that point, the appellant grabbed the complainant by the wrist, which scared her as she was recovering from a broken wrist. The complainant said the appellant then pushed her and threatened her, saying “I can kill you right now. Do you want to die, bitch?” This scared the complainant. They were by that time in her bedroom. The appellant then left the bedroom briefly.[8][5]AB at 139.[6]AB at 139.[7]AB at 140.[8]AB at 141.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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