R v Ali

Case [2016] QCA 338

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ali [2016] QCA 338

PARTIES:

R
v
ALI, Wajid
(appellant)

FILE NO/S:

CA No 152 of 2016
DC No 453 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Ipswich – Date of Conviction: 25 May 2016

DELIVERED ON:

16 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2016

JUDGES:

Fraser and Philippides and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted, after a re-trial, of one count of indecent treatment of a child under 16 – where the appellant argued that there was insufficient evidence against him – where the respondent submitted that it was open to the jury to accept the complainant’s evidence and that evidence was supported by the CCTV evidence – whether the verdict was unreasonable or not supported by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted, after a re-trial, of one count of indecent treatment of a child under 16 – where the appellant sought to highlight shortcomings in the police investigation as a ground of appeal – where the respondent submitted those deficiencies were raised by defence counsel at trial – whether those deficiencies resulted in any unfairness to the appellant

Criminal Code (Qld), s 668E(1)
Evidence Act 1977 (Qld), s 93A

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, cited
R v Agius[2015] QCA 277, cited
R v Ali[2015] QCA 191, cited
R v Baden-Clay (2016) 90 ALJR 1013; (2016) 334 ALR 234; [2016] HCA 35, cited
R v Maddison[2016] QCA 279, cited
R v RAU[2015] QCA 217, applied
R v SCH[2015] QCA 38, cited
R v Thomson[2016] QCA 259, cited
R v Vlies[2016] QCA 276, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

The appellant appeared on his own behalf
D Nardone for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons given by Philippides JA, and the additional reasons given by Philip McMurdo JA, and I agree with the order proposed by Philippides JA.

  2. PHILIPPIDES JA:  The appellant was convicted by a jury on 25 May 2016, after a three day re-trial, of one count of indecent treatment of a child under 16.  He had previously been tried before a jury in relation to this charge and…

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AGLC
R v Ali [2016] QCA 338
Case
[2016] QCA 338
Decision Date

CaseChat Overview and Summary

The appellant in the matter of R v Ali challenged his conviction for one count of indecent treatment of a child under 16, following a re-trial, on the grounds that the verdict was unreasonable or not supported by the evidence. The case was heard in a court of appeal in Queensland, Australia. The primary legal issues before the court were whether the verdict was unreasonable or not supported by the evidence, and whether the deficiencies in the police investigation resulted in any unfairness to the appellant.

The court examined the evidence presented at trial, which included the testimony of the complainant, CCTV footage, and the appellant's admissions. The court noted that the complainant's evidence was age appropriate, plausible, and consistent regarding the substance of the offending conduct. The court also observed that the opportunity for the offences to be committed in the way described by the complainant existed, and that the appellant was present in the library on the relevant date and at the relevant time, as depicted in the CCTV footage. The court found that any inconsistencies in the complainant's evidence were explainable and reasonable, and that the cross-examination of the complainant did not reveal any material issues or inconsistencies that went to the core of the offending.

The court also considered the appellant's argument that the deficiencies in the police investigation resulted in unfairness to him. However, the court found that these deficiencies were either evidentially neutral or positively benefited the appellant's defence, as they were raised by the appellant's counsel at trial as a mechanism to undermine the jury's confidence in the complainant's evidence.

Based on the above findings, the court dismissed the appeal against conviction. The court found that the verdict was not unreasonable or unsupported by the evidence, and that there was no resultant unfairness to the appellant due to the deficiencies in the police investigation. The appeal against conviction was therefore dismissed, and the appellant's conviction stood.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In relation to the history of this matter, it has an unfortunate chronology. Following being charged with this offence on 9 September 2013, the appellant had his bridging visa cancelled with effect from 11 April 2014, with the result that the appellant has been kept in immigration detention since then (with the exception of a period of 52 days spent in prison). The trial judge at the first trial indicated that a sentence of nine months imprisonment would have been appropriate for this offending but moderated the sentence to the recognisance imposed after taking into account the period the appellant had spent in immigration detention up to that point. The trial judge at the re-trial endorsed this view of the appropriate sentence. It can be observed that the appellant has now spent a period of nearly 32 months in immigration detention.Summary of evidence at trial The circumstances of the offending forming the subject of the count were summarised by Gotterson JA in R v Ali:[2]“The complainant’s evidence was that he was visiting the Ipswich City Library with his family. He, his father and his sister went to the computers to search the library catalogue. He could not find what he was looking for in the catalogue and started looking through books stacked in the aisles.He noticed a man of Indian appearance, the appellant, sitting in a lounge area, staring at him and being ‘really creepy’. The complainant walked down the aisle he was in and out of the appellant’s eyesight. Suddenly, he noticed the appellant in the same aisle. The appellant asked him his name and offered his right hand to him for a handshake. As the appellant was speaking to the complainant, the appellant started to feel and touch his pants in the groin area with his right hand. It seemed to the complainant that the appellant’s penis was erect underneath his pants.The appellant asked the complainant for the time. The complainant checked on his mobile phone and told the appellant the time that he saw displayed. The appellant said that that was the wrong time and that the complainant should accompany him back to his car so that he could show him the right time. The complainant was uneasy because he could see that the appellant had his own iPhone with him. The complainant walked away from the appellant.The complainant resumed looking for books in the aisles. He noticed that the appellant was doing likewise. The appellant approached him a second time and again offered his hand. The complainant said, ‘No’. The appellant mumbled. He asked the complainant his name and what he was doing that night. The complainant replied that he was going to hockey training. The appellant kept asking if he could drive the complainant home or if the complainant could go back to his (the appellant’s) place. The complainant began to ignore the appellant.The appellant then said, ‘Excuse me’ and went to walk past the complainant. But, instead, he put his hands around the complainant’s waist. The appellant put his head on the complainant’s shoulder and tried to kiss his neck. He moved one of his hands down the complainant’s right arm towards his wrist. The complainant moved to step forward and away. The appellant stepped with him. The complainant could feel the appellant rubbing his penis against the complainant’s body.The complainant began to crack his knuckles. The appellant took a small step back. The complainant turned around and said to the appellant that he was going and walked away. He found his father and made a complainant (sic) to him. His father went searching for the person, the subject of the complaint, but was unable to find him.”[2][2015] QCA 191 at [3]-[8].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On the hearing of the appeal, the appellant also maintained his submissions alleging deficiencies in the police investigation.Consideration As the respondent acknowledged, the Crown case depended on the acceptance of the evidence of the complainant. It is to be observed that the trial judge made that clear to the jury and also directed the jury as to the need to examine very carefully the evidence of each of the witnesses, and particularly that of the complainant, before relying on that evidence. As to the first ground of appeal, the respondent submitted that the evidence of the complainant was frank, clear and consistent regarding the substance of the offending conduct. In particular, the complainant gave evidence that was age appropriate and plausible. In the context of the other evidence given, the opportunity for the offences to be committed in the way described by the complainant existed. In that respect, the evidence indicated that the appellant was present in the library on the relevant date and, as depicted in the CCTV footage, at the relevant time. This was consistent with both the evidence led and admissions made. In my view, any inconsistences in the complainant’s evidence were explainable and reasonable. As the respondent argued, the cross‑examination of the complainant did not reveal any material issues or inconsistencies that went to the core of the offending. In the circumstances, the evidence of the complainant could be relied upon and the jury were entitled, on the evidence of the complainant, to accept his account of the events. As to the second ground of appeal, while the appellant sought to highlight shortcomings in the police investigation as a ground of appeal, it is apparent from the trial judge’s summing up that those deficiencies relating to the police investigation were features raised by the appellant’s counsel at trial as a mechanism to undermine the jury’s confidence in the complainant’s evidence. As the respondent submitted, the deficiencies in the investigation were therefore either evidentially neutral or positively benefited the appellant’s defence. In my view, it cannot be concluded that there was any resultant unfairness to the appellant.Order I would propose that the appeal against conviction is dismissed. PHILIP McMURDO JA: I agree with the reasons of Philippides JA for dismissing this appeal. As the trial judge directed the jury, the indecent act or acts of the appellant were said to have been his placing his hands on the complainant’s waist, placing his head on the complainant’s shoulder and rubbing himself against the complainant. The complainant’s evidence was susceptible to the criticism that there were inconsistencies between what he said of the event to his parents and Senior Constable MacDonald on the one hand and, on the other hand, what he said in the interview by Senior Constable Hagan which was admitted at the trial.[16][16]Under s 93A of the Evidence Act 1977 (Qld). The complainant’s father said that the complainant told him that the appellant had been “pushing himself up against him fairly close; making [the complainant] uncomfortable.” But in cross‑examination the father said that he was told that the appellant had been “very close to him, close enough to be nearly pressed up against him.” The complainant’s mother said that prior to being interviewed by police, the complainant had told her simply that “someone had tried to chat him up”. Senior Constable MacDonald interviewed the complainant in the presence of his mother. Referring to his notes, he recalled the complainant saying that the appellant had “walked behind … and brushed up against him … and grabbed hold of the complainant’s arm”, apparently trying to shake his hand. Senior Constable MacDonald agreed that he was told nothing about any attempt to kiss the complainant or anything of the appellant “rubbing his genital area against the boy”.