R v Johani - [2019] QCA 232

SUPREME COURT OF QUEENSLAND

CITATION:

R v Johani [2019] QCA 232

PARTIES:

R
v
JOHANI, Mitterand Badesire
(appellant)

FILE NO/S:

CA No 253 of 2018
DC No 486 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 18 September 2018 (Horneman-Wren SC DCJ)

DELIVERED ON:

29 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2019

JUDGES:

Fraser and Morrison and McMurdo JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – SEXUAL INTERCOURSE – where the appellant was charged with 11 counts of sexual offending, including: rape, unlawful carnal knowledge and indecent treatment – where the appellant was acquitted of all but two of the counts against him – where the appellant was convicted on two counts of rape – where the appellant challenges his convictions on two grounds – whether the merits of either of the grounds hold that the convictions should not have occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of rape – where the appellant challenges his convictions on the ground that the verdict was unsafe or unsatisfactory, and cannot be supported by the evidence – where the appellant challenges his convictions on the ground that the jury should not have been informed that an alleged lie told by the appellant to police about which bedroom was his, was capable of evidencing consciousness of guilt – whether the verdict that was decided by the jury can be supported by the evidence – whether the alleged lie that was told to the jury was prejudicial to the appellant – whether the alleged lie has the qualities of an Edwards lie

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, followed
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v PBA [2018] QCA 213, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

A J Edwards for the appellant
C N Marco for the respondent

SOLICITORS:

Owens & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.
MORRISON JA: The complainant, then a month or so short of 14 years old, ran away from her parents during a library visit. After a time she was persuaded by her sister to return. On the way she met a number of men and joined them in their house. A short time later the appellant arrived and, upon being told that the complainant did not know the other men, and upon hearing that the complainant did not wish…

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 Johani

Details

AGLC: R v Johani [2019] QCA 232
Case: [2019] QCA 232
Decision Date: 29 October 2019

CaseChat Overview and Summary

The appellant, Johani, was convicted of two counts of rape and appealed against the verdicts, arguing that they were unreasonable and that the jury should not have been informed of an alleged lie told to police. The appeal was dismissed by the Queensland Court of Appeal. The appellant's primary contention was that the verdict was unreasonable and could not be supported by the evidence. The court undertook a thorough examination of the evidence, including the testimony of the complainant, to determine if the jury's verdict was open to them, beyond reasonable doubt. The court considered the principles established by the High Court in SKA v The Queen and M v The Queen, which emphasize the pre-eminent role of the jury in determining guilt or innocence. The court found that the jury's verdict was supported by the evidence and that it was open to them to be satisfied beyond reasonable doubt of the appellant's guilt. The court also rejected the appellant's argument that the jury should not have been informed of an alleged lie, concluding that the lie did not have the qualities of an Edwards lie and was not prejudicial.

The court held that both grounds of appeal failed. The reasoning of the court was grounded in the respect for the jury's role as the primary arbiter of fact, coupled with a meticulous examination of the evidence. The court's decision underscores the importance of the jury system and the deference appellate courts must give to the jury's verdicts. The appeal was dismissed, and the convictions on the two counts of rape were upheld.

ORDERS:
The appeal is dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

When considering the evidence, particularly that of the complainant, the particularised counts should be borne in mind. They are:(a)Count 1 – indecent treatment – the appellant rubbed the complainant’s leg;(b)Count 2 – indecent treatment – the appellant kissed the complainant;(c)Count 3 – indecent treatment – the appellant inserted his finger or fingers into the complainant’s vagina;(d)Count 4 – unlawful carnal knowledge – the appellant penetrated the complainant’s vagina with his penis;(e)Count 5 – indecent treatment – the appellant rubbed his penis on the complainant’s genital area;(f)Count 6 – unlawful carnal knowledge – the appellant penetrated the complainant’s vagina with his penis;(g)Count 7 – indecent treatment – the appellant touched the complainant’s breast or breasts;(h)Count 8 – indecent treatment – the appellant touched the complainant’s vagina area with his tongue and/or mouth;(i)Count 9 – indecent treatment – the appellant touched the complainant’s chest area with his penis;(j)Count 10 – rape – the appellant penetrated the complainant’s vagina with his penis, without her consent; and(k)Count 11 – rape – the appellant penetrated the complainant’s vagina with his penis, without her consent.Review of evidence The central ground on his appeal was that the verdict was unsafe. When that is raised the principles are clear. The principles governing how this ground of appeal must be approached are not in doubt. In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen[1] requires that this Court perform an independent examination of the whole evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt. It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.[1](2011) 243 CLR 400 at [20]-[22]; [2011] HCA 13; see also M v The Queen (1994) 181 CLR 487 at 493-494. In M v The Queen the High Court said:[2]“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself 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. But 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. On the contrary, the court must pay full regard to those considerations.”[2]M v The Queen at 493; internal citations omitted. Reaffirmed in SKA v The Queen. Recently the High Court has restated the pre-eminence of the jury in R v Baden-Clay.[3] As summarised by this Court recently in R v Sun,[4] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,[5] in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”[6] The High Court said:[7]“With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] 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.”[3](2016) 258 CLR 308 at [65]-[66]; [2016] HCA 35; internal citations omitted.[4][2018] QCA 24, at [31].[5]Citing Hocking v Bell (1945) 71 CLR 430 at 440; [1945] HCA 16.[6]Baden-Clay at 329, citing M v The Queen at 494, and MFA v The Queen (2002) 213 CLR 606 at 621-622 [49]-[51], 623 [56]; [2002] HCA 53.[7]Baden-Clay at 330 [66].

Decision

Reasons for decision

This ground fails.Conclusion and orders For the reasons which I have expressed above both grounds of appeal fail. The appeal should be dismissed. McMURDO JA: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Johani [2019] QCA 232
PARTIES:	R v JOHANI, Mitterand Badesire (appellant)
FILE NO/S:	CA No 253 of 2018 DC No 486 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich – Date of Conviction: 18 September 2018 (Horneman-Wren SC DCJ)
DELIVERED ON:	29 October 2019
DELIVERED AT:	Brisbane
HEARING DATE:	16 May 2019
JUDGES:	Fraser and Morrison and McMurdo JJA
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – SEXUAL INTERCOURSE – where the appellant was charged with 11 counts of sexual offending, including: rape, unlawful carnal knowledge and indecent treatment – where the appellant was acquitted of all but two of the counts against him – where the appellant was convicted on two counts of rape – where the appellant challenges his convictions on two grounds – whether the merits of either of the grounds hold that the convictions should not have occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of rape – where the appellant challenges his convictions on the ground that the verdict was unsafe or unsatisfactory, and cannot be supported by the evidence – where the appellant challenges his convictions on the ground that the jury should not have been informed that an alleged lie told by the appellant to police about which bedroom was his, was capable of evidencing consciousness of guilt – whether the verdict that was decided by the jury can be supported by the evidence – whether the alleged lie that was told to the jury was prejudicial to the appellant – whether the alleged lie has the qualities of an Edwards lie Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, followed M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited R v PBA [2018] QCA 213, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
COUNSEL:	A J Edwards for the appellant C N Marco for the respondent
SOLICITORS:	Owens & Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent