R v Ali - [2002] QCA 64

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ali [2002] QCA 64

PARTIES:

R
v
ALI, Akhman
(applicant/appellant)

FILE NO/S:

CA No 279 of 2001
DC No 281 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

15 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2002

JUDGES:

McMurdo P, Davies JA, Byrne J
Separate reasons for judgment of each member of the Court, Davies JA and Byrne J concurring as to the orders made, McMurdo P dissenting in part

ORDER:

The appeal against conviction dismissed and the application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – MISCELLANEOUS OFFENCES AND MATTERS – OTHER OFFENCES

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – INCONSISTENCY BETWEEN DIFFERENT FINDINGS– PARTICULAR CASES - where appellant and his wife jointly charged with two counts of stalking against neighbour husband and wife – where appellant convicted on count 1 but acquitted on count 2 – where appellant's wife found not guilty on both counts – whether verdict of guilty on count 1 is unsafe and unsatisfactory because it is inconsistent with the acquittal of appellant’s wife and acquittal on count 2 – whether open to jury to find appellant's conduct satisfied s 359B(d)(i) and (ii) Criminal Code in respect of wife complainant but not in respect of husband complainant

CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – BURDEN OF PROOF – DIRECTION TO JURY – where no direction by trial judge that Crown bore the onus of proving that the circumstances of the alleged unlawful stalking were unreasonable – whether s 359B Criminal Code imports a notion of reasonableness in its elements

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – whether judge’s summing up lacked balance because the explanation of the prosecution case was more detailed than that of the defence

JURY – THE JURY IN CRIMINAL PROCEEDINGS – GENERAL MATTERS - where over 150 particularised alleged acts of stalking – where verdict does not indicate which acts were proven beyond reasonable doubt – where no application by defence counsel for special verdict – whether trial judge should have requested a special verdict for purpose of sentencing

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED - where sentence of 3 years imprisonment and restraining order of 15 years imposed – where no plea of guilty and no display of remorse – where one prior conviction and positive references – where head sentence increased from 3 to 5 years - where sentence not manifestly excessive

Criminal Code (Qld), s 359A, s 359B, s 359E, s 359F

Mackenzie v R (1996) 190 CLR 348

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 [2002] QCA 64
Case: [2002] QCA 64
Decision Date: 15 March 2002

CaseChat Overview and Summary

In the matter of R v Ali, the appellant and his wife were jointly charged with two counts of stalking against a neighbouring couple. The appellant was convicted on the first count but acquitted on the second, while his wife was acquitted on both counts. The appellant appealed against his conviction on the ground that it was inconsistent with his wife's acquittal and his acquittal on the second count. Additionally, he argued that it was not open to the jury to find his conduct satisfied the relevant provisions of the Criminal Code in respect of one complainant but not the other. The appellant also contended that the trial judge failed to direct the jury that the Crown bore the onus of proving the unreasonableness of the alleged stalking and that the summing up lacked balance.

The court examined whether the verdict of guilty on the first count was inconsistent with the acquittals and whether it was open to the jury to find the appellant's conduct satisfied the relevant provisions of the Criminal Code in respect of one complainant but not the other. The court held that the verdict was not inconsistent and that it was open to the jury to find the appellant's conduct satisfied the relevant provisions of the Criminal Code in respect of one complainant but not the other. The court also held that the trial judge's summing up was not lacking in balance and that there was no misdirection or non-direction to the jury.

The court further considered whether the trial judge should have requested a special verdict for the purpose of sentencing. The court held that there was no obligation on the trial judge to request a special verdict, as the defence counsel did not make an application for one. The court also held that the sentence imposed was not manifestly excessive.

The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused. The sentence of 3 years imprisonment and a restraining order of 15 years imposed on the appellant remained in place.

Orders

Orders of the court

The appeal against conviction dismissed and the application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Ali [2002] QCA 64
PARTIES:	R v ALI, Akhman (applicant/appellant)
FILE NO/S:	CA No 279 of 2001 DC No 281 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	15 March 2002
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2002
JUDGES:	McMurdo P, Davies JA, Byrne J Separate reasons for judgment of each member of the Court, Davies JA and Byrne J concurring as to the orders made, McMurdo P dissenting in part
ORDER:	The appeal against conviction dismissed and the application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – MISCELLANEOUS OFFENCES AND MATTERS – OTHER OFFENCES APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – INCONSISTENCY BETWEEN DIFFERENT FINDINGS– PARTICULAR CASES - where appellant and his wife jointly charged with two counts of stalking against neighbour husband and wife – where appellant convicted on count 1 but acquitted on count 2 – where appellant's wife found not guilty on both counts – whether verdict of guilty on count 1 is unsafe and unsatisfactory because it is inconsistent with the acquittal of appellant’s wife and acquittal on count 2 – whether open to jury to find appellant's conduct satisfied s 359B(d)(i) and (ii) Criminal Code in respect of wife complainant but not in respect of husband complainant CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – BURDEN OF PROOF – DIRECTION TO JURY – where no direction by trial judge that Crown bore the onus of proving that the circumstances of the alleged unlawful stalking were unreasonable – whether s 359B Criminal Code imports a notion of reasonableness in its elements CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – whether judge’s summing up lacked balance because the explanation of the prosecution case was more detailed than that of the defence JURY – THE JURY IN CRIMINAL PROCEEDINGS – GENERAL MATTERS - where over 150 particularised alleged acts of stalking – where verdict does not indicate which acts were proven beyond reasonable doubt – where no application by defence counsel for special verdict – whether trial judge should have requested a special verdict for purpose of sentencing CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED - where sentence of 3 years imprisonment and restraining order of 15 years imposed – where no plea of guilty and no display of remorse – where one prior conviction and positive references – where head sentence increased from 3 to 5 years - where sentence not manifestly excessive Criminal Code (Qld), s 359A, s 359B, s 359E, s 359F Mackenzie v R (1996) 190 CLR 348