R v Khan

Case [2020] QCA 242

SUPREME COURT OF QUEENSLAND

CITATION:

R v Khan [2020] QCA 242

PARTIES:

R
v
KHAN, Mohammed
(appellant)

FILE NO/S:

CA No 54 of 2020
SC No 53 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Conviction: 13 February 2020 (Crow J)

DELIVERED ON:

Date of Orders: 6 November 2020
Date of Publication of Reasons: 9 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2020

JUDGES:

Sofronoff P and Morrison and Mullins JJA

ORDERS:

Orders delivered: 6 November 2020

1.   Appeal allowed.

2.   The conviction be quashed and a verdict of acquittal be entered in its place.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of murder – where the only issue at trial was whether the evidence was sufficient to satisfy the jury, beyond reasonable doubt, that it was the appellant who caused the death – where the appellant seeks to challenge his conviction on two grounds – where it is unnecessary to deal with ground 1 – where ground 2 is that the verdict was unreasonable and cannot be supported having regard to the evidence – where the case was entirely circumstantial – where the appellant submits that although it was open to the jury to be satisfied that the appellant was not at home throughout all of that period, all of the other evidence considered together did not prove relevant presence beyond reasonable doubt – where the Crown submits that the connection between the appellant and the deceased lay in the proposition that the two were to meet to go fishing together – where the imprecision of the phone tower evidence could not permit the jury to conclude beyond reasonable doubt that the appellant was with the deceased or in the same area as the deceased on 5 May 2016 – where the jury could not have been satisfied beyond reasonable doubt that at the time the deceased was killed the appellant was still with him – where there was no forensic evidence that linked the appellant, his car or his house to the death of the deceased – where the jury could not safely draw the conclusion that the vehicle depicted in the original CCTV footage was that of the appellant – whether the verdict was unreasonable and cannot be supported having regard to the evidence

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
R v PBA[2018] QCA 213, cited

COUNSEL:

M J Copley QC, with P Richards, for the appellant
D Balic for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with Morrison JA.

  2. MORRISON JA:  On 16 April 2016 the body of Syeid Alam was discovered next to a stream that entered the north side of the Fitzroy River in Rockhampton.  The body had…

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R v Khan [2020] QCA 242
Case
[2020] QCA 242
Decision Date

CaseChat Overview and Summary

In the case of R v Khan, the appellant contested his conviction for murder. The central issue at trial was whether the evidence was sufficient to satisfy the jury, beyond reasonable doubt, that the appellant was the person who caused the death of the deceased. The appeal was based on two grounds: first, a potential miscarriage of justice due to an erroneous direction regarding the availability of defence evidence connected with motive; and second, that the verdict was unreasonable and could not be supported by the evidence. The court found it unnecessary to address the first ground, focusing instead on the second ground, which contended that the verdict was unreasonable given the evidence. The case was entirely circumstantial and hinged on whether the jury could be satisfied beyond reasonable doubt that the appellant was present when the deceased was killed.

The court concluded that the evidence, including phone tower data, CCTV footage, and the lack of forensic evidence, did not support the conclusion that the appellant was present at the scene of the crime. The phone tower evidence, while indicating the appellant was in the vicinity, did not provide precise location data. The CCTV footage and re-enactment did not reliably identify the appellant's vehicle, and no forensic evidence linked the appellant to the crime scene. Given these factors, the court found that the jury should have had reasonable doubts, preventing them from being satisfied beyond reasonable doubt that the appellant was the killer. Consequently, the appeal was allowed, the conviction was quashed, and a verdict of acquittal was entered in its place.

Orders

Orders of the court

Orders delivered: 6 November 2020

1. Appeal allowed.

2. The conviction be quashed and a verdict of acquittal be entered in its place.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant seeks to challenge his conviction on two grounds:(a)Ground 1: a miscarriage of justice occurred because the jury was erroneously directed about the availability to the defence of evidence connected with motive; and(b)Ground 2: the verdict was unreasonable and cannot be supported having regard to the evidence.Evidence at the trial What follows is a synopsis of the evidence at the trial. Some is not referred to largely because it concerned mechanical aspects of the investigation, such as finding the deceased’s phone, wallet and key ring, or steps in the police investigation.[2][2]Further, without meaning any disrespect, and for ease of understanding only, I shall use abbreviated versions of the witnesses’ full names. The appellant’s phone was seized on 19 April 2016. It revealed that on 5 April the deceased had called the appellant at 5.47 pm. That call lasted 24 seconds. Then, at 6.53 pm the appellant called the deceased. That call lasted 26 seconds. Examination of the phone also revealed that those two calls had been deleted from the phone, as had four calls between the deceased and the appellant on other days leading up to 5 April. The appellant had also deleted six other calls, though they were not with the deceased. Police were unable to determine when all the calls had been deleted. Nor Alam, an acquaintance of both the appellant and the deceased telephoned the deceased at 6.59 pm on 5 April 2016. That call went for five minutes and 48 seconds. In the course of their conversation:(a)the deceased asked if Nor Alam knew where the appellant was;(b)Nor Alam said the appellant had gone out;(c)the deceased asked where the appellant had gone, and Nor Alam replied that he did not know;(d)the deceased asked if the appellant had gone fishing, but Nor Alam said he did not know; and(e)at some point of the conversation the deceased asked if he could catch up with Nor Alam, but Nor Alam said he was not available. Nor Alam’s evidence otherwise was that he had been at the appellant’s house for about two hours from about 5.00 pm on 5 April 2016, and that he and the appellant had left separately from that house, each in their own car and at the same time. However, they drove in different directions. Police seized the appellant’s vehicle on 4 May 2016 but forensic examinations conducted the following day, examining for blood, blood traces or other biological material connected with the deceased, did not produce any results. Similarly, forensic examination of the appellant’s house produced no results. The police assembled CCTV footage recorded on 5 April 2016 at two locations. The first was at an intersection at the end of the street in which the appellant lived (Dean Street) where that street intersected with Lakes Creek Road. The footage was of cars moving through the intersection at 6.54 pm and 8.06 pm. The second intersection was between Queen Elizabeth Drive and Bridge Street. The timing of that footage was 8.03 pm. The prosecution case at trial was that the CCTV footage showed the appellant’s vehicle (a black Jeep Cherokee) driving through both intersections. The prosecution also contended that a re-enactment performed by the police, when they later drove the appellant’s vehicle through the same intersections at the same times, enabled the jury to conclude that the footage on the night of 5 April 2016 was, indeed, that of the appellant.

Decision

Reasons for decision

Fourthly, the threat of violence was in vague terms, but understood by Sha Alam to mean that if there were further dissemination of the photos then he might be subjected to violence. It is a long bow to draw to tie those threats to an inference that the appellant killed the deceased.Conclusion The central issue at the trial was that of identification, namely could the jury be satisfied beyond reasonable doubt that it was the appellant who killed the deceased. The case was entirely circumstantial and ultimately depended upon what might be inferred from the fact that the deceased and the appellant planned to go fishing on the night of 5 April. The imprecision of the phone tower evidence could not permit the jury to conclude beyond reasonable doubt that the appellant was with the deceased or in the same area as the deceased on 5 April 2016. It simply puts the appellant somewhere in the blue shaded part of the map at AB 640. There is no evidence as to when the deceased was killed, with the consequence that even if the deceased and the appellant had met to go fishing, the jury could not have been satisfied beyond reasonable doubt that at the time the deceased was killed the appellant was still with him. Nor Alam knew the appellant intended to visit Sadek in order to print documents, as he went to the appellant’s house for that purpose. One possibility that could not be excluded is that the deceased and the appellant met to fish, but the appellant left to fulfil the printing job that had to be done for the solicitor’s meeting the next day. The CCTV footage and re-enactment could not logically assist in that process, given the unreliability of identification of the car. The lack of any forensic evidence that would link the appellant to the death of the deceased meant that there was nothing to overcome any other doubts as to his involvement. The manner in which the deceased died was decapitation, which was likely to have produced a substantial amount of blood. The Crown’s case was that the appellant was the person who decapitated the deceased. Yet there was no forensic evidence from any of the samples taken in the appellant’s house or car that would lend support to his being present at the time. In the circumstances the jury should have had a doubt that prevented them from being satisfied beyond reasonable doubt of the identification of the deceased’s killer as the appellant. Therefore, in my view, the verdict must be set aside and a verdict of acquittal entered. It is unnecessary to deal with ground 1. I propose the following orders:1.Appeal allowed.2.The conviction be quashed and a verdict of acquittal be entered in its place. MULLINS JA: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

In cross-examination Edwards added that an urban cell tower had a range of up to 10 to 15 kilometres. Unless there was a loss of signal from other towers, it was not very likely that a cell tower would pick up a signal in the opposite direction to which the antenna was pointing.[79][79]AB 484.Consideration It is convenient to consider ground 2 first.The competing contentions For the appellant Mr Copley QC submitted it was not open to the jury to be satisfied beyond reasonable doubt that it was the appellant who did the killing. To find the appellant guilty the jury had to be satisfied beyond reasonable doubt that the appellant was present at the gully where the deceased’s body was found at some point within the time period identified by the Crown. Although it was open to the jury to be satisfied that the appellant was not at home throughout all of that period, all of the other evidence considered together did not prove relevant presence beyond reasonable doubt. More specifically, even if it could be accepted that it was the appellant’s vehicle that passed through the intersections at the times nominated that evidence did not even tend to show that the appellant drove to the gully area. The intersections were in a city and the roads concerned gave access to many different places. Further, the evidence from cell towers showed that it was highly probable the appellant was within or very close to the areas shaded blue on the maps. But even if he was in the shaded area at the relevant time, his actual position in that area could not be determined at all. The threat at the mosque was not of having done violence, but of prospective violence if the photos were disseminated. In addition, there was evidence that cast doubt on the existence of any arrangement between the deceased and the appellant to meet that evening: (i) the deceased asked if he could meet with Nor Alam; (ii) when interviewed by police Nor Alam had not said anything to the police about the deceased having asked whether the appellant was going fishing; and (iii) the deceased's assertion that he was meeting the appellant for fishing was unreliable given that he had previously used the excuse of fishing to cover outings for gambling. For the Crown, Ms Balic submitted that the connection between the appellant and the deceased lay in the proposition that the two were to meet to go fishing together. The deceased’s wife gave evidence that her husband would only go fishing with the appellant. He had been preparing to do that with the appellant that evening. He had indeed told her that he was going fishing whilst driving. There was strong circumstantial evidence to demonstrate that the appellant was not at his home at the time of the murder. Most compelling within that category was the evidence of Nor Alam, who left the appellant’s house at the same time and saw the appellant leave. Nor Alam’s evidence also established that the deceased and the appellant were to meet that night, which was consistent with the evidence of the deceased’s wife. Further the telephone tower evidence showed that there was a high probability that the appellant’s telephone was within or very close to the blue shaded areas of the maps. These areas indicated movement towards the relevant part of Rockhampton where the body was recovered and back the other way.