R v Ali - [2015] QCA 191

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ali [2015] QCA 191

PARTIES:

R
v
ALI, Wajid
(appellant)

FILE NO/S:

CA No 104 of 2015
DC No 453 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Unreported, 7 May 2015

DELIVERED ON:

Orders delivered ex tempore 1 October 2015
Reasons delivered 13 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2015

JUDGES:

Gotterson JA and Philip McMurdo and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Orders delivered ex tempore on 1 October 2015:

1.   Appeal allowed.

2.   Conviction set aside.

3.   A retrial on the count in the indictment is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the Court made orders allowing an appeal by the appellant against his conviction of an offence against s 210(1)(a) of the Criminal Code (Qld) – where the count on which the appellant was convicted alleged that he unlawfully and indecently dealt with a teenage boy who was then 14 years old – where the appellant was sentenced to release on entering into a recognisance in the amount of $200 on the condition that he keep the peace and be of good behaviour for two years – where on appeal this Court ordered that the appellant’s conviction be set aside and that there should be a retrial on the count – where the complainant’s evidence was that he was visiting the Ipswich City Library with his family – where the complainant was searching through the aisles – where the complainant noticed a man of Indian appearance, the appellant, sitting in a lounge area, staring at him and being “really creepy” – where the complainant noticed the appellant in the same aisle – where the appellant asked the complainant his name and offered his right hand to him for a handshake – where whilst the appellant was speaking to the complainant, the appellant started to feel and touch his pants in the groin area with his right hand – where it seemed to the complainant that the appellant’s penis was erect underneath his pants – where the appellant asked the complainant for the time – where the complainant checked on his mobile phone and told the appellant the time that he saw displayed – where 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 – where the complainant was uneasy because he could see that the appellant had his own iPhone with him – where the complainant walked away from the appellant – where the complainant resumed looking for books in the aisles – where the appellant approached the complainant a second time and again offered his hand – where the appellant…

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 [2015] QCA 191
Case: [2015] QCA 191
Decision Date: 1 October 2015

CaseChat Overview and Summary

The appellant, Ali, appealed against his conviction for an offence against s 210(1)(a) of the Criminal Code (Qld). The conviction arose from an incident in which the appellant was alleged to have unlawfully and indecently dealt with a teenage boy who was then 14 years old at the Ipswich City Library. The appellant was sentenced to release on entering into a recognisance in the amount of $200 on the condition that he keep the peace and be of good behaviour for two years. The court was required to decide whether the failure of the trial judge to direct the jury accordingly occasioned a substantial miscarriage of justice.

The court found that the failure of the trial judge to direct the jury to review the complainant's cross-examination constituted a non-direction which had a significant impact on the fairness of the trial. The court found that the omission of the complainant's cross-examination from the evidence replayed to the jury was not a trivial error but rather a substantial one that had the potential to influence the jury's decision. The court held that the error was not harmless and that it was necessary to order a retrial in the interests of justice.

The appeal was allowed, the conviction was set aside, and a retrial on the count in the indictment was ordered. The court found that the failure of the trial judge to direct the jury to review the complainant's cross-examination was a significant error that had the potential to influence the jury's decision. The court held that the error was not harmless and that it was necessary to order a retrial in the interests of justice. The court made no further orders.

Orders

Orders of the court

Orders delivered ex tempore on 1 October 2015:

1. Appeal allowed.

2. Conviction set aside.

3. A retrial on the count in the indictment is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Ali [2015] QCA 191
PARTIES:	R v ALI, Wajid (appellant)
FILE NO/S:	CA No 104 of 2015 DC No 453 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich – Unreported, 7 May 2015
DELIVERED ON:	Orders delivered ex tempore 1 October 2015 Reasons delivered 13 October 2015
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2015
JUDGES:	Gotterson JA and Philip McMurdo and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Orders delivered ex tempore on 1 October 2015: 1. Appeal allowed. 2. Conviction set aside. 3. A retrial on the count in the indictment is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the Court made orders allowing an appeal by the appellant against his conviction of an offence against s 210(1)(a) of the Criminal Code (Qld) – where the count on which the appellant was convicted alleged that he unlawfully and indecently dealt with a teenage boy who was then 14 years old – where the appellant was sentenced to release on entering into a recognisance in the amount of $200 on the condition that he keep the peace and be of good behaviour for two years – where on appeal this Court ordered that the appellant’s conviction be set aside and that there should be a retrial on the count – where the complainant’s evidence was that he was visiting the Ipswich City Library with his family – where the complainant was searching through the aisles – where the complainant noticed a man of Indian appearance, the appellant, sitting in a lounge area, staring at him and being “really creepy” – where the complainant noticed the appellant in the same aisle – where the appellant asked the complainant his name and offered his right hand to him for a handshake – where whilst the appellant was speaking to the complainant, the appellant started to feel and touch his pants in the groin area with his right hand – where it seemed to the complainant that the appellant’s penis was erect underneath his pants – where the appellant asked the complainant for the time – where the complainant checked on his mobile phone and told the appellant the time that he saw displayed – where 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 – where the complainant was uneasy because he could see that the appellant had his own iPhone with him – where the complainant walked away from the appellant – where the complainant resumed looking for books in the aisles – where the appellant approached the complainant a second time and again offered his hand – where the appellant…