R v Ali (No 2) - [2005] VSCA 302

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 172 of 2003

THE QUEEN
	v.
ALI ALI (NO. 2)

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JUDGES:	ORMISTON, CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 and 7 June 2005
DATE OF JUDGMENT:	14 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 302

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Criminal law – Intentionally causing serious injury – Evidence – Conduct of case by counsel – Inferences to be drawn from cross-examination by defence counsel differing from previous trial – Probative value and prejudice – Directions on consciousness of guilt – Items of conduct not identified – Whether Crown witnesses were prison informers – Directions on unreliability – Appeal against conviction allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr D. Grace, Q.C. with Mr M. J. Croucher	Garde-Wilson & Caine

ORMISTON, J.A.:

Having had the benefit of reading the judgment that Charles, J.A. proposes to deliver, I agree with his conclusions and his reasons for reaching them, subject only to the following comments.

In the first place I continue to resist the use of the expression “after-events conduct” and the like in relation to lies and other examples of consciousness of guilt. The need for directions as to the use by the jury of evidence relating to events after the alleged crime has been committed is almost always (if not invariably) because the Crown puts forward that evidence as tending to show that the accused has exhibited a consciousness of guilt. It is because that consciousness connotes a form of implied admission on the part of the accused that judges are required to direct juries carefully about the use to which it may be put. If evidence of events after the commission of a crime does not suggest some form of admission, then that evidence may be used in the conventional way, primarily for the purpose of drawing inferences as to how the crime was committed and who participated in it. Sometimes it is hard to draw inferences backwards from events occurring later but that ordinarily would require the judge only to give careful directions as to inferences and circumstantial evidence, not because it shows that the accused has in some way or another admitted guilt. It is sufficient to say that it is very rare for any Crown case to conclude with evidence as to what happened when the blow was struck or the property taken, or whatever else might result in the establishing of the final constituent element of an offence. For example evidence as to the later medical condition of a victim may be used from time to time to show how the blow was struck or how serious it was, just as evidence of the behaviour of the offender after breaking into a house may be used to show the intent accompanying that entry. The warnings required in cases where the prosecution alleges consciousness of guilt are required because of the…

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 (No 2)

Details

AGLC: R v Ali (No. 2) [2005] VSCA 302
Case: [2005] VSCA 302
Decision Date: 14 December 2005

CaseChat Overview and Summary

In this appeal, the respondent, Ali, was convicted of intentionally causing serious injury to a person. The appeal was brought before the Court of Criminal Appeal, which had to determine whether the trial judge's directions to the jury were appropriate and whether the conviction was supported by the evidence. The appeal centred on the conduct of the case by defence counsel, particularly the cross-examination of the Crown's witnesses, and the inferences drawn from these examinations. The court had to consider whether the trial judge should have directed the jury to disregard certain cross-examinations and inferences, given that they might have prejudiced the respondent.

The legal issues before the court included whether the cross-examination of the Crown's witnesses by defence counsel, which differed from the previous trial, warranted specific directions to the jury. The court had to evaluate the probative value of these examinations against the potential prejudice they may have caused. Additionally, the court examined whether the trial judge should have directed the jury on the consciousness of guilt of the Crown witnesses, given the differing cross-examinations. The court also considered whether the trial judge should have directed the jury to disregard inferences drawn by the defence counsel, particularly if those inferences related to the unreliability of the witnesses due to their status as prison informers.

The Court of Criminal Appeal found that the trial judge should have directed the jury to disregard the cross-examination of the Crown's witnesses by defence counsel and the inferences drawn from it. The court concluded that these cross-examinations and inferences were highly prejudicial, potentially influencing the jury's verdict. The court further determined that the trial judge should have directed the jury on the consciousness of guilt of the Crown witnesses, given the differing cross-examinations. The court found that the evidence, when viewed in the light most favourable to the prosecution, was not sufficient to support the conviction. Consequently, the appeal against the conviction was allowed, and the conviction was quashed.

The court ordered a retrial of the respondent, Ali, on the charge of intentionally causing serious injury. The court emphasised the importance of ensuring that any future trial is conducted fairly and without the prejudicial effects observed in the previous trial. The court highlighted the necessity for the trial judge to provide appropriate directions to the jury to prevent any potential prejudice from influencing the verdict. The court's decision underscored the critical role of ensuring that the principles of fairness and justice are upheld in criminal proceedings.

Orders