SUPREME COURT OF QUEENSLAND
CITATION:
R v Deen; R v Deen; R v Deen [2022] QCA 274
PARTIES:
In CA No 111 of 2022:
R
v
DEEN, Zain Fazal
(appellant)In CA No 113 of 2022:
R
v
DEEN, Imran Aziz
(appellant)In CA No 114 of 2022:
R
v
DEEN, Mohammed Umar
(appellant)FILE NO/S:
CA No 111 of 2022
CA No 113 of 2022
CA No 114 of 2022
DC No 560 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 6 June 2022 (Clare SC DCJ)
DELIVERED ON:
23 December 2022
DELIVERED AT:
Brisbane
HEARING DATE:
25 August 2022
JUDGES:
Morrison and McMurdo and Bond JJA
ORDERS:
In each of CA No 111 of 2022, CA No 113 of 2022 and CA No 114 of 2022:
The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where each of the appellants were convicted after a trial on identical counts contrary to s 339(1) of the Criminal Code (Qld), assault occasioning bodily harm – where the prosecution’s case was that each appellant was guilty because the complainant was injured in an unlawful assault by the appellants – where any one of the appellants was either the person who unlawfully inflicted that injury or encouraged another appellant to inflict it – where the facts were the subject of conflicting evidence – where the complainant said that he was confronted by the three appellants – where the appellants used bats to assault the complainant – where the complainant videoed the appellants reversing the car at great speed to leave the street – where only one of the appellants gave evidence – where that appellant said the complainant attacked one of the other appellants who defended themselves – where another appellant gave an out of court statement that was tendered by the Crown – where the complainant’s wife gave evidence – where a mutual cousin of the complainant and the appellants gave evidence – where the doctor who treated the complainant at the hospital gave evidence – where a forensic pathologist gave evidence – whether the jury should not have rejected the appellants’ evidence that the complainant threw the first punch – whether the complainant’s credibility was profoundly damaged by the irreconcilable differences in the account of an independent witness – whether the complainant’s account of how the injuries occurred meant the jury could not have rationally concluded that it occurred that way – whether it was open to the jury to reject the combination of the appellants’ evidence and the independent witness evidence – whether the combination of that evidence created a reasonable doubt – whether the evidence was not open to the jury to find the appellants’ guilty – whether the verdict was unreasonable or insupportable having regard to the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND…
Keep reading for free
Create a free CaseChat account to read R v Deen; R v Deen; R v Deen and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2022] QCA 274
- Decision Date
CaseChat Overview and Summary
In the case of R v Deen; R v Deen; R v Deen, the appellants, Umar, Zain, and Imran, were convicted of assault occasioning bodily harm under section 339(1) of the Criminal Code (Qld). The complainant alleged that he was attacked by the appellants, resulting in various injuries. The appellants claimed self-defence and argued that the complainant had initiated the violence. The Queensland Court of Appeal was tasked with reviewing the convictions on several grounds, including whether the verdicts were unreasonable or insupportable given the evidence, and whether there were any misdirections or non-directions by the trial judge.
The court had to decide whether the jury could rationally conclude that the appellants were guilty based on the evidence presented. This involved assessing the credibility of the complainant's account against the appellants' defence and any other evidence, such as that from independent witnesses. The court also had to consider whether the combination of the appellants' evidence and the independent witness evidence created a reasonable doubt about their guilt. Furthermore, the court examined whether the trial judge's directions to the jury, including a Liberato direction, were appropriate and whether any omissions or misdirections led to a miscarriage of justice.
After a thorough review of the evidence and legal arguments, the majority of the Court of Appeal found that the verdicts were not unreasonable or insupportable. The court concluded that it was open to the jury to reject the appellants' self-defence claims and find them guilty based on the complainant's account and the evidence presented. The majority also found that any alleged misdirections or non-directions by the trial judge did not result in a miscarriage of justice. However, one judge dissented on the issue of flight hypothesis, finding that the trial judge's suggestion that the appellants might have fled the scene amounted to a misdirection, necessitating a retrial.
In conclusion, the appeal was dismissed, and the convictions were upheld. The differing opinion on the flight hypothesis did not sway the majority's decision but highlighted the importance of proper jury directions in criminal trials.
The court had to decide whether the jury could rationally conclude that the appellants were guilty based on the evidence presented. This involved assessing the credibility of the complainant's account against the appellants' defence and any other evidence, such as that from independent witnesses. The court also had to consider whether the combination of the appellants' evidence and the independent witness evidence created a reasonable doubt about their guilt. Furthermore, the court examined whether the trial judge's directions to the jury, including a Liberato direction, were appropriate and whether any omissions or misdirections led to a miscarriage of justice.
After a thorough review of the evidence and legal arguments, the majority of the Court of Appeal found that the verdicts were not unreasonable or insupportable. The court concluded that it was open to the jury to reject the appellants' self-defence claims and find them guilty based on the complainant's account and the evidence presented. The majority also found that any alleged misdirections or non-directions by the trial judge did not result in a miscarriage of justice. However, one judge dissented on the issue of flight hypothesis, finding that the trial judge's suggestion that the appellants might have fled the scene amounted to a misdirection, necessitating a retrial.
In conclusion, the appeal was dismissed, and the convictions were upheld. The differing opinion on the flight hypothesis did not sway the majority's decision but highlighted the importance of proper jury directions in criminal trials.
Orders
Orders of the court
In each of CA No 111 of 2022, CA No 113 of 2022 and CA No 114 of 2022:
The appeal is dismissed.
Background
Background to the litigation
The Crown particularised five injuries, namely a scalp laceration, a T7 fracture, a fractured finger, a bruised jaw and bruising to the back and ribs.[6][6]AB 93 line 44 to AB 94 line 3.Background The following basic facts, largely taken from the trial judge’s synopsis, were not in issue at the trial:(a)the complainant had done some work for the appellants’ father,[7] and a dispute arose between them about the wages owed to the complainant; (b)on 3 January 2020, the complainant tried to greet Umar at the mosque, but Umar snubbed him and said something about sorting it out;(c)at about 3.00 pm that day, Umar called the complainant and said he was outside the complainant’s workplace, and he wanted to meet; (d)the complainant suggested that they go to the street behind the workplace so that they could avoid being recorded on CCTV cameras; (e)Umar then drove to Loam Street, with Zain and Imran in the same car; and(f)the complainant drove to Loam Street in his truck;(g)there was an altercation between the complainant and Umar, Zain and Imran; and(h)the complainant sustained injuries to his head and back.[7]Referred to in evidence as “Uncle Louis”. What happened at Loam Street was the subject of conflicting evidence. The complainant said that he was confronted by the three appellants almost as soon as he got out of his truck. They had two bats with them. He was alone and tried to get away by climbing back into his truck. He was pulled down onto the road and hit 25-35 times. The appellants stopped hitting him and got into their car. The complainant got back into his truck and videoed the appellants’ car reversing at great speed out of Loam Street. Only Zain was called to give direct evidence. He said that the complainant attacked Umar first and Umar defended himself. There were no weapons and Imran and Zain did not participate. Umar did not give evidence but an out of court statement by him was tendered by the Crown. In it Umar said the complainant threw the first punch, which missed.Legal principles – unreasonable verdicts The legal principles applicable where the ground in that the verdict was unreasonable are well known. They were recently restated in Dansie v The Queen.[8] Dansie reaffirmed the approach set out in M v The Queen:[9][8][2022] HCA 25.[9](1994) 181 CLR 487. The Court reaffirmed the relevant task as being that laid down in M v The Queen:[10]“[8] That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.[9]The joint judgment in M made clear that “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”. The joint judgment equally made clear how those considerations are to impact on the court's independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”[10]Dansie at [8]-[9]. Citations omitted.
Evidence
Evidence Before The Court
For Zain’s defence case, evidence came from Zain and Dr Duflou, a forensic specialist. Umar and Imran neither called nor gave evidence.Complainant’s evidence The complainant’s evidence included the following aspects:(a)he was a first cousin of Umar, Zain and Imran;(b)in October 2019 he was working as a truck driving subcontractor for Uncle Louis; on 10 December 2019 there was a heated conversation between he and Uncle Louis about non-payment, and the complainant was told that he would not be paid;(c)after he had gone home that day Zain and Imran arrived at the gate of the complainant’s house; they were honking a car horn and smashed into the gate with a truck; Zain called the complainant on the mobile and told him to come outside; the complainant’s wife called triple zero, and the police moved Zain and Imran on;(d)on 3 January the complainant went to the Darra Mosque for the prayer session; on the way out he saw a cousin, Hapu,[14] sitting beside Umar; then:[15][14]The cousin’s name was Hafeez Deen but he was called Hapu by the witnesses.[15]AB 170 lines 16-20.“I saw Hapu and I tapped him on the shoulder and offered the – a sign of greeting, which was a Muslim greeting, and he greeted me back as well, and then I proceeded to do the same thing to Umar, and he straightaway put his arm straight to the back of the chair and said, “Nope, no way.””(e)the complainant responded to Umar:[16][16]AB 170 lines 25-29.“I said, “Well, what have I done to you?” At this stage, we were – we were talking with a good cousin relationship, and then he said that – excuse the – he said, “You’re fucked, cunt, for what you’ve done to my father.” and he said that, “We’re going to get you, and you – you won’t see it coming.””(f)then followed this exchange:[17][17]AB 170 lines 31-36.“Right. What did you say in response to that?---In response to that, I said, “Well, mate, don’t threaten me.” I stepped outside of the mosque. I said, “Come and give me whatever you’re going to give me.” I said, “I’m here.” Yep.What did he do when you said that?---He said, “Nah, not right now. We’ll get you when you least expect it.””(g)he stepped outside, left it at that and left the mosque;(h)while the complainant was at work Umar called saying that they needed to meet up and talk about the incident that happened at the mosque, and work through it and try to resolve the matter; they agreed to meet;(i)Umar suggested they meet at the complainant’s place of work; the complainant said to meet around the corner because he could be dismissed if there were verbal arguments; he suggested meeting in Loam Street, directly behind his workplace;(j)the complainant was still working so he drove there in his Mack truck semi; when he arrived Umar’s LandCruiser was already there; the complainant reversed his truck into Loam Street and parked some distance from the LandCruiser; Umar drove his car down to the driver’s door of the truck, and parallel with the truck;[18][18]Shown on Exhibits 1 and 2.(k)Umar got out of his car, standing at its front; the complainant remained in the truck for a while as he had to cool the turbo; he then got out of the truck; he looked at Umar’s car and it did not seem as though there was anyone else in it;(l)Umar pulled a shiny bat out from behind his jeans and over his head; he spoke and Umar answered:[19][19]AB 174 lines 42-44.“I said, what’s going on, and he said first, straight away, all he would reply was, “What’s up, cunt.” He says, “It’s fucking payback time.”(m)the complainant saw Imran and Zain get out of the car; they ended up about a metre from him;(n)the complainant gave details of what each cousin was wearing;(o)Zain was holding a silver bat, smaller than that held by Umar; the complainant spoke to Zain:[20][20]AB 175 line 45 to AB 176 line 10.“Well, I said to him – I said, “Is this what you cowards are going to do to me; gang bash me?” And then Zain said, “You’re not going to get away from – you’re not going to walk away from this this time, you cunt.”Did you respond to that at all?---I said to him, “Can we at least do this honourably and amicably and can we at least have a one on one and not be gang bashed unfairly.”Okay. And was there a response to that?---Yes.Who – who responded?---Umar.What did he say?---He said, “No fucking way.” He said, “It’s happening right here, right now.””(p)the complainant turned round and tried to get into his truck, so he could lock himself inside; he got up two of the steps and grabbed the steering wheel; he could hear Umar say, “Quick, get the cunt. Quick, grab him”;(q)he described what happened next:[21][21]AB 176 lines 24-34.“And what happened then?---And then I grabbed hold of the steering wheel. I could feel there was three people grabbing my legs and I just held on as tight as I could to the steering wheel and they were pulling – like, my legs were then in mid-air and they were pulling me as hard as they could, and then I was getting hit in the back with a bat on my back and all of my back, and I – then I remember Zain on the righthand side was slamming the door trying to get me to let go, onto my head and my shoulders and then I just couldn’t hold on any longer.You couldn’t hold on any longer, you said?---No, not – my belt broke. My belt snapped in half and then my – my pants came down and then I couldn’t – just couldn’t hold on any longer.”(r)the complainant identified the broken portion of his belt in two photos that became Ex 3;(s)the complainant explained what happened when he let go the steering wheel:[22]“Okay. Now, you said you let – you let go of the steering wheel?---Once my belt snapped, yes.And what happened at that point?---Then I was dragged by tremendous force by two grown men and I fell head first down to the – down to the bitumen.Okay. Now, what happens – what happened once you were pulled onto the road?---Well, once I – I hit the step on the way down. I remember that that was quite – quite a large bang on my head, and then I – when I hit the bitumen, it was pretty much all over for me. I couldn’t – yeah. But then – then they started to – yeah – just hit me with bats on my head and kick me in all directions and it was like my – tried to – to just – to snap my finger. Yeah.Okay. How were you positioned on the road when they were doing that?---Face down.”(t)he could feel more than one bat hitting him, one to the back and one to the head; asked how many times he was hit with a bat, he said he did not count, but “it felt like for a few minutes”, and “it would have been twenty, thirty, thirty-five times”;[23] he shielded his head with right hand;(u)he said Zain was in the middle, kicking him from the side and hitting him with a bat; Imran was behind him; Imran “pulled my left hand up and was trying to snap my fingers back”; the fingers were the little and ring fingers on the left hand;(v)the assault stopped; he sat up against the step of the truck; he “felt pain everywhere, my head, my back, my fingers, my knees”;(w)Umar said to him:[24]“He said, “You got payback, cunt.” He said, “This is what you get for messing with my family.” And he goes, “You know, if you go to the coppers,” he said, “I’m going to come back and finish the job properly.” He said, “It ends here.””[22]AB 178 lines 10-24.[23]AB 178 lines 33-34.[24]AB 180 lines 1-4.
Decision
Reasons for decision
This ground fails.Conclusion For the reasons expressed above all grounds of appeal fail. I propose the following order in each of CA 111 of 2022, CA 113 of 2022 and CA 114 of 2022:1. The appeal is dismissed. McMURDO JA: Justice Morrison has thoroughly discussed the evidence, the arguments at the trial and in this Court and the judge’s summing up. I agree with his judgment in every respect, except in relation to ground 3 of the appeal. In my view, there was a miscarriage of justice because the trial judge suggested that the jury might infer that the appellants’ car was driven from the scene at high speed because the appellants wanted to get away “after they had unlawfully attacked [the complainant]”. An element of that hypothesis was that the appellants had unlawfully attacked the complainant. It is likely that the jury understood the hypothesis as being that the appellants were leaving the scene in a hurry because that was the scene of the crime which they had just committed. The problem was that this came after the conclusion of counsels’ addresses and after the prosecutor had told the judge, in the absence of the jury and before the addresses, that no direction would be necessary on a question of flight. Because the prosecutor had disavowed an argument of flight in the absence of the jury, not only should this hypothesis not have been raised by the judge, but also a direction was required in the appellants’ favour. Against the risk that the jury might infer that the appellants were fleeing the scene, the jury should have been directed that this was not a possibility for which the prosecution was contending, and that they should not draw that inference. It is true that counsel did not seek a redirection. However, as the respondent agrees, that is not determinative. Further, the respondent does not argue for the application of the proviso. There was a miscarriage of justice which in my opinion would require the convictions to be set aside and a retrial ordered. BOND JA: I agree with the reasons for judgment of Morrison JA and with the orders proposed by his Honour.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.