R v Nijamuddin - [2012] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nijamuddin [2012] QCA 124

PARTIES:

R
v
NIJAMUDDIN, Arif
(appellant)

FILE NO/S:

CA No 51 of 2011
DC No 390 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

15 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2012

JUDGES:

Margaret McMurdo P and Fraser JA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal against conviction is allowed.

2.   The verdict of guilty on count 1 is set aside.

3.   A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where appellant pleaded not guilty to two counts of indecent treatment of a 14 year old girl – where he was convicted of grabbing complainant’s right breast (count 1) but not touching her genital area (count 2) – whether the jury verdict was unreasonable or not supported by the evidence – whether the guilty verdict on count 1 was inconsistent with the not guilty verdict on count 2

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where a video recording of the complainant’s pre-trial evidence was marked as an exhibit – where the exhibit was allowed into the jury room during their deliberations – whether the provision of the exhibit to the jury was an irregularity and an error

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the prosecution alleged that the appellant had lied during a police interview out of a consciousness of guilt – where the trial judge directed the jury as to the lies – whether the direction constituted an error of law

Criminal Code 1899 (Qld), s 632, s 668E

Broadhurst v The Queen [1964] AC 441; cited
De Jesus v The Queen (1986) 61 ALJR 1; (1986) 22 A Crim R 375; [1986] HCA 65, cited
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, discussed
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, distinguished
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, cited

COUNSEL:

P E Smith, with K M Hillard, for the appellant
B J Power for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The appellant,…

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 Nijamuddin

Details

AGLC: R v Nijamuddin [2012] QCA 124
Case: [2012] QCA 124
Decision Date: 15 May 2012

CaseChat Overview and Summary

The appellant, Nijamuddin, appealed against his conviction for indecently treating a 14-year-old girl, with whom he had been in a relationship. The appellant was acquitted of touching the girl's genital area, but was found guilty of grabbing her right breast. The court was required to consider whether the verdict was unreasonable or not supported by the evidence, and whether the verdict on the first count was inconsistent with the acquittal on the second count.

The court found that the jury's verdict was unreasonable because the evidence did not support the guilty verdict on the first count. The court also found that the acquittal on the second count was inconsistent with the guilty verdict on the first count, as the evidence did not support a conviction on either count. The court also found that the admission of a video recording of the complainant’s pre-trial evidence to the jury room during their deliberations was an irregularity and an error. The court found that the trial judge's direction to the jury regarding the appellant's alleged lies during a police interview was an error of law.

The appeal against conviction was allowed, and the verdict of guilty on count 1 was set aside. A retrial was ordered.

Orders

Orders of the court

1. The appeal against conviction is allowed.

2. The verdict of guilty on count 1 is set aside.

3. A retrial is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Nijamuddin [2012] QCA 124
PARTIES:	R v NIJAMUDDIN, Arif (appellant)
FILE NO/S:	CA No 51 of 2011 DC No 390 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	15 May 2012
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2012
JUDGES:	Margaret McMurdo P and Fraser JA and Margaret Wilson AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal against conviction is allowed. 2. The verdict of guilty on count 1 is set aside. 3. A retrial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where appellant pleaded not guilty to two counts of indecent treatment of a 14 year old girl – where he was convicted of grabbing complainant’s right breast (count 1) but not touching her genital area (count 2) – whether the jury verdict was unreasonable or not supported by the evidence – whether the guilty verdict on count 1 was inconsistent with the not guilty verdict on count 2 CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where a video recording of the complainant’s pre-trial evidence was marked as an exhibit – where the exhibit was allowed into the jury room during their deliberations – whether the provision of the exhibit to the jury was an irregularity and an error CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the prosecution alleged that the appellant had lied during a police interview out of a consciousness of guilt – where the trial judge directed the jury as to the lies – whether the direction constituted an error of law Criminal Code 1899 (Qld), s 632, s 668E Broadhurst v The Queen [1964] AC 441; cited De Jesus v The Queen (1986) 61 ALJR 1; (1986) 22 A Crim R 375; [1986] HCA 65, cited Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, discussed Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, distinguished M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, cited
COUNSEL:	P E Smith, with K M Hillard, for the appellant B J Power for the respondent
SOLICITORS:	Fisher Dore Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent