R v Latifi

Case [2014] SASCFC 74

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LATIFI

[2014] SASCFC 74

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)

17 July 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY

CRIMINAL LAW - EVIDENCE - CREDIBILITY - REPUTATION FOR UNTRUTH

Appeal against convictions. The appellant was convicted following a trial by Judge alone of three counts of rape and one count of indecent assault. The victim, SM, was a door-to-door saleswoman who attended at the address of the appellant.

Whether the trial Judge failed to correctly apply the burden of proof. Whether the Judge erred in concluding that the complainant’s evidence was truthful and reliable in light of a number of claimed inconsistencies, improbabilities and omissions. Whether the Judge erred in concluding that the appellant constructed certain aspects of his evidence in the witness box. Whether the Judge failed to consider good character evidence and oath belief evidence called at trial in support of the appellant. Whether the verdicts were unreasonable and against the weight of the evidence.

Held per Kelly J; Kourakis CJ and Vanstone J concurring (allowing the appeal):

1. The outcome of this case depended largely on the trial Judge’s assessment of the credit of the complainant and the appellant. The adverse finding as to the credit of the appellant must have had an important impact on the verdict reached by the trial Judge.

2. Appeal allowed on the sole ground that the trial Judge erred in concluding that the appellant constructed his evidence in the witness box.

3. Appeal allowed, convictions set aside and retrial ordered.

R v Trimboli (1979) 21 SASR 577; R v Keyte (2000) 78 SASR 68; R v Winner (1995) 79 A Crim R 528; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; M v The Queen (1994) 181 CLR 487, applied.
R v Latifi [2014] SADC 27; R v J, SM (2013) 117 SASR 535, discussed.

R v LATIFI
[2014] SASCFC 74

Court of Criminal Appeal:   Kourakis CJ, Vanstone and Kelly JJ

  1. KOURAKIS CJ:   I would allow the appeal, set aside the convictions and direct that there be a retrial.  I agree with the reasons of Kelly J.

  2. VANSTONE J:     I agree with the orders proposed by Kelly J and with the reasons she has written.

    KELLY J.

  3. This is an appeal against the verdicts of a trial Judge sitting alone.  On 21 February 2014 the appellant Abdul Mateen Latifi was found guilty in the District Court of three counts of rape and one count of indecent assault.  The victim was an adult woman who I shall refer to as SM. 

  4. A Judge of this Court granted permission to appeal in respect…

Continue reading R v Latifi

Sign in free to access the full text

Details
AGLC
R v Latifi [2014] SASCFC 74
Case
[2014] SASCFC 74
Decision Date

CaseChat Overview and Summary

The appeal concerned convictions for three counts of rape and one count of indecent assault, following a trial by judge alone. The appellant, Latifi, was convicted of these offences after a trial where the complainant, SM, a door-to-door saleswoman, alleged the events occurred at his home.

The grounds of appeal raised several issues, including whether the trial judge misapplied the burden of proof, erred in finding the complainant's evidence truthful and reliable despite alleged inconsistencies, and wrongly concluded the appellant had reconstructed his testimony. The appellant also contended the judge failed to adequately consider evidence of his good character and "oath belief" evidence, and that the verdicts were consequently unreasonable and against the weight of the evidence.

The appellate court considered the relevance of good character evidence, noting it is admissible both to the credit of an accused and as a factor affecting the likelihood of them committing the offence. However, it was established that in a judge-alone trial, a judge is not required to provide the same detailed directions on evidence as would be necessary for a jury. The court applied the test from *M v The Queen* to assess whether the verdicts were unsafe and unsatisfactory, independently evaluating the evidence.

Ultimately, the appeal was allowed on the basis of errors identified under ground three, which were found to have potentially caused a miscarriage of justice. Consequently, the convictions were set aside, and a retrial was directed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The complaints made by the appellant are that the trial Judge failed to correctly apply the burden of proof, erred in concluding that the complainant’s evidence was truthful and reliable in light of a number of claimed inconsistencies, improbabilities and omissions, erred in concluding that the appellant reconstructed certain aspects of his evidence in the witness box and failed to consider good character evidence and “oath belief” evidence called at trial in support of the appellant. Finally, by reason of the matters complained of the appellant contended that the verdicts were unreasonable and against the weight of the evidence. Background The events which gave rise to all charges occurred at the appellant’s home in a suburb of Adelaide on 30 October 2012. At this time the complainant, SM was a 32 year old woman who was employed by Australian Sales and Promotions to attend door to door to sell electricity contracts on behalf of Alinta Energy. She had been working for Alinta Energy for approximately 10 weeks. On the afternoon of 30 October 2012 SM was tasked with doorknocking within a specific geographical area allocated to her by her supervisors. Other members of the same sales team were working in adjacent areas, however SM was door knocking alone within her allocated zone. Senior team member Matthew Lyons drove the van which deposited each staff member in their allocated zone. He dropped off SM in the relevant area at about 12.40 pm and then engaged in door to door selling in the same general area. The appellant’s home was the second address that SM attended as part of her door to door sales that day. On the prosecution case she approached the appellant’s house shortly after taking a telephone call from Telstra on her mobile telephone. The time of that call which, on the prosecution case was at 1.27 pm, was significant as it established the outer limits of the time frame within which the events which occurred inside the house were said to have taken place. SM approached the house and spoke to the appellant who at the time was outside the front of the home washing his car. She told the appellant about the purpose of her visit and he then went inside the house to obtain an electricity bill. During the initial conversation the appellant told SM that his mother was not at home and he did not know when she would be back. The appellant returned to the front of the house with a gas bill rather than an electricity bill and then went inside for a second time to retrieve an electricity bill. While at the front of the premises SM said she used an envelope produced by the appellant to write down a mobile telephone number for him to pass on to his mother. SM said she called out for a glass of water while the appellant was still inside the house and he returned with a glass of water which he handed to her. As she took the glass the appellant grabbed her breasts over her shirt. He pulled her breasts so that she was forced to step forwards into the house and as he did so she dropped the glass of water and it broke. The act of grabbing the complainant’s breasts was charged as one separate count of indecent assault.

Evidence

Evidence Before The Court

I do not consider that this ground of appeal has been made out. Evidence of good character I turn now to consider ground 5 of the appeal, which is a complaint that the trial Judge did not accord any or sufficient weight to the evidence of good character led by the appellant. The trial Judge was obliged to take the evidence of good character into account when deciding whether the prosecution had proved its case beyond reasonable doubt. That evidence came from two witnesses, Ms Johnston and Mr Fitz-Gerald. After accurately summarising their evidence the trial Judge said:[2]The key witness for the defence was the accused. In considering his evidence I have borne in mind his good character and the evidence of Ms [Johnston] and Mr [Fitz-Gerald].[2] R v Latifi [2014] SADC 27 at [181]. The specific complaint made on appeal is that the trial Judge at no stage specifically adverted to the use of the character evidence as relevant to both the appellant’s credit as a witness and as to likelihood of the appellant committing the offence. This failure, the appellant submitted, resulted in it remaining unclear as to whether the trial Judge did accord sufficient or any weight to the evidence of good character. It is true that the trial Judge did not recite anywhere in the reasons the relevant principle applicable to the use of good character evidence. Good character evidence is relevant to the credit of an accused. It is also relevant as a factor affecting the likelihood of an accused committing the crime charged, although it cannot prevail against evidence of guilt which the trier of fact finds to be convincing notwithstanding the accused’s previous character.[3] [3] R v Trimboli (1979) 21 SASR 577 at 578 per King CJ. However that principle is neither controversial nor complex. It is well established that in a trial by Judge alone, a Judge giving reasons is not required to replicate every direction which would be required to be given to a jury. In R v Keyte[4] Doyle CJ (Williams and Wicks JJ agreeing) cited with approval[5] the remarks of Kirby P in R v Winner:[6]It is not self evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. ...The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office: cf Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666. Those reasons must be adequate and appropriate to sustain the judge's orders. But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind of errors that would invite and authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal.[4] (2000) 78 SASR 68.[5] R v Keyte (2000) 78 SASR 68 at [54].[6] (1995) 79 A Crim R 528 at 530-531.

Decision

Reasons for decision

The test to be applied in considering whether a verdict is unsafe and unsatisfactory on the ground that it is unreasonable and cannot be supported having regard to the evidence is the test formulated in M v The Queen.[12] This Court in making its own independent assessment must determine whether, on the whole of the evidence, it was open to the trier of fact to be satisfied beyond reasonable doubt of the appellant’s guilt. In making this assessment I have had regard to the fact that the trial Judge had the benefit of seeing and hearing the witnesses. I have read the whole of the evidence, including the complainant’s account. While in some respects the circumstances in which this offence occurred are somewhat unusual, I do not accept the submission that the complainant’s evidence was implausible. I would dismiss this ground of appeal. [12] (1994) 181 CLR 487.Conclusion As I have set out, I would allow this appeal on the basis of the errors agitated under ground three. The errors may have caused a miscarriage of justice. For these reasons I would allow the appeal, set aside the convictions and direct a retrial.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.