R v Saraghi-Smith

Case [2024] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

R v Saraghi-Smith [2024] QCA 180

PARTIES:

R
v
SARAGHI-SMITH, Aladin Sebastian James
(appellant)

FILE NO/S:

CA No 169 of 2023
DC No 239 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 31 August 2023 (Richards DCJ)

DELIVERED ON:

Date of Orders: 9 August 2024
Date of Publication of Reasons: 1 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

9 August 2024

JUDGES:

Bond and Flanagan and Boddice JJA

ORDERS:

Date of Orders: 9 August 2024

1.   The appeal is allowed.

2.   Convictions set aside.

3.   A new trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted by a jury of two counts of rape and one count of disabling to commit an indictable offence – where, during cross-examination of the appellant, the prosecutor asked the appellant about aspects of his evidence which had not been the subject of cross-examination of the complainant – where such cross-examination was directed to impugning the appellant’s credit – whether a miscarriage of justice was occasioned by the failure of the trial judge to address the prejudicial aspects of that cross-examination, in summing up to the jury

HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, applied
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, considered
Zhou v The Queen [2021] NSWCCA 278, cited

COUNSEL:

J J Underwood for the appellant
S L Dennis for the respondent

SOLICITORS:

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

  1. BOND JA:  For the reasons given by Boddice JA, I joined in the making of the Court’s orders on 9 August 2024.

  2. FLANAGAN JA:  For the reasons given by Boddice JA, I joined in the making of the Court’s orders on 9 August 2024.

  3. BODDICE JA:  On 31 August 2023, a jury found the appellant guilty, by majority verdict, of two counts of rape (counts 3 and 4) and one count of disabling to commit an indictable offence (count 5).  The jury found the appellant not guilty, by a majority, of one count of rape (count 1) and unanimously, of one count of disabling to commit an indictable offence (count 2).

  4. The appellant appealed his convictions, on three grounds.  First, a miscarriage of justice was occasioned by the failure of the learned trial judge to direct the jury as to the use they could make of the fact that certain matters were not put to the complainant (ground 1).  Second, the learned trial judge made a wrong decision on a question of law, namely, that the evidence of the male at the fast food outlet was inadmissible (ground 2).  Third, a miscarriage of justice was occasioned by reason of the prosecution’s failure to provide the contact details of three material witnesses to the accused, so that he could…

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AGLC
R v Saraghi-Smith [2024] QCA 180
Case
[2024] QCA 180
Decision Date

CaseChat Overview and Summary

In the case of R v Saraghi-Smith, the appellant was convicted by a jury of two counts of rape and one count of disabling to commit an indictable offence. The appellant sought an appeal against his conviction, arguing that the trial judge's failure to address the prejudicial aspects of the prosecutor's cross-examination resulted in a miscarriage of justice. The central issue for the court was whether the cross-examination of the appellant, which included questions about aspects of his evidence not previously examined in the complainant's cross-examination, amounted to a misdirection or non-direction that could have influenced the jury's verdict.

The court found that the prosecutor's cross-examination was directed at impugning the appellant's credit and was not properly grounded. The prosecutor's questions implied that certain details in the appellant's testimony were fabricated, without any basis in the complainant's evidence. This approach was held to be potentially prejudicial, as it could lead the jury to discount the appellant's evidence without proper justification. The court referenced Hofer v The Queen, where it was established that an accused should not be subject to cross-examination designed to impugn their credit unless there are clear indications of recent invention. The court concluded that the prosecutor's line of questioning in this case did not meet this standard, and thus it constituted a misdirection.

Consequently, the court allowed the appeal, set aside the convictions, and ordered a new trial. This decision was based on the finding that the misdirection during the prosecutor's cross-examination had the potential to prejudice the appellant, leading to a miscarriage of justice. The court's ruling underscores the importance of ensuring that cross-examination is fair and properly grounded to maintain the integrity of the trial process.

Orders

Orders of the court

Date of Orders: 9 August 2024

1. The appeal is allowed.

2. Convictions set aside.

3. A new trial is ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

These are my reasons for joining in those orders.EvidenceComplainant The complainant gave evidence that she met the appellant as a work colleague, in 2014. They had a casual relationship that involved intercourse, maybe four times over the course of a year. It was usual penile-vaginal intercourse. There was nothing aggressive or forceful. On no occasion did the appellant put his hand around her neck. After the relationship “fizzled out” in 2015, the complainant did not see the appellant until August 2020, when they met by chance at a fast food outlet. The next day they began talking to each other over Facebook, after the appellant sent a friend request. The messages were about catching up. On 22 August 2020, the appellant invited the complainant to meet him at an apartment block. As they travelled by lift to the apartment, they kissed each other. When they arrived at the apartment, four of the appellant’s friends were present. They had some drinks together. Later, they went to the bathroom where they kissed some more. They then went into the bedroom. The complainant said this activity was “all consensual”. The complainant said that when she asked the appellant to wear a condom, he said no. When she said “We have to use one” the appellant did not say anything. He climbed on top of her and penetrated her vagina with his penis (count 1). As he did so, he squeezed her throat with his hand and she struggled to breathe (count 2). She tried to remove his hand from her throat. At one point, he told her “Just shut the fuck up and do what you’re told.” The complainant said when she managed to remove his hand from her throat, she rolled over to get away, causing his penis to withdraw from her vagina. Despite her tears, the appellant again penetrated her vagina with his penis (count 3), whilst behind her. On this occasion he put a hand on the back of her neck. When the complainant again told him no, he repeated “Just shut the fuck up and do what you are told.” The complainant said at some point, she ended up on her back. The appellant, who was kneeling in front of her, forced his penis inside her vagina once more (count 4). At the same time, he grabbed her by the throat and she struggled to breathe (count 5). The complainant was telling him no and tried to push him off. The appellant did not stop. The complainant then yelled “no” as loud as she could. At that point, the appellant stopped and she put on her underwear and left the room. After leaving the apartment, the complainant spoke to her brother by telephone. She also ordered an Uber. When she arrived home, her brother came over with a friend, C. The complainant told them what had happened in the apartment. The next day the complainant texted details to two friends, B and J, in a Facebook group chat. Later that day, she spoke to them in person. The complainant also told an aunt what had happened to her in the apartment. The complainant said on the morning of 23 August 2020, after showering, she noticed bruising on her neck. Photographs were taken that day. Later, the complainant took a video of her neck. Each were shown to the jury.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The appellant said he would describe the complainant as just a sexual partner in the past. The relationship was purely sexual in nature. He accepted that the purpose of inviting her to the apartment that night was to have sex. He was concerned she left and did not come back. His thought “whatever” was because he was in a state of confusion. He did not go down in the elevator to look for her because he received a phone call from her brother saying, “If you contact my sister again, I’ll break you.” He did not accept that the complainant tried to pull his hand off her neck. He did not accept that she said “no” very loudly.ConsiderationGround 1 During the cross-examination of the appellant, the prosecutor asked the appellant about aspects of his evidence which had not been the subject of cross-examination of the complainant. Relevantly, those aspects included:“… [the complainant] wasn’t asked about the safe word between the two of you, being ‘pineapples’, yesterday, was she?---I – I don’t recall. No, I don’t think so.No. That’s because that’s something you just made up today, wasn’t it?---No.…[the complainant] never told you or never said the words, ‘Oh yeah, harder’ when she was in the bedroom with you in the [apartment] did she?---She did.That wasn’t put to her yesterday either, was it?---Don’t believe so.No. And that’s because that’s something new that you’ve invented today?---Incorrect. It’s what happened.And [the complainant] never had her phone underneath the pillow in the [apartment] bedroom, did she?---No, she did.And she wasn’t asked about that yesterday, was she?---I wasn’t – didn’t have a chance to speak to her.Your barrister didn’t ask her or suggest that she had her pillow – her phone under the pillow, did she?---It’s – it’s in my statement. It’s in my – it’s been in my statement since day one.” Such cross-examination was plainly directed to impugning the appellant’s credit. The prosecutor, in address, used it for that purpose. Relevantly, the prosecutor said:“I want to turn to [the appellant’s] evidence. What you do with it is a matter for you, members of the jury. But when you think about his evidence, apply the same filters that you do to [the complainant’s] evidence. Consider the plausibility of what he told you. Consider the ring of truth, the likelihood of the things he said happening. Is there a convenience to his evidence, members of the jury? Think about that. Think about the level of detail that we heard that [the complainant] didn’t have an opportunity to comment on in her cross-examination. Think, particularly, about his demeanour when he gave evidence.All of those things, in my submission, are important when assessing what he said to you today. You might simply reject what he says.”[15][15]AB 381/35 – AB 384/14. In Hofer v The Queen[16] the plurality observed:-“Where there remains a number of possible explanations as to why a matter was not put to a witness there is no proper basis for a line of questioning directed to impugning the credit of an accused. Except in the clearest of cases, where there are clear indications of recent invention, an accused person should not be subject to this kind of questioning. The potential for prejudice to an accused is obvious.Proceeding on the basis of a mere assumption as to a lack on instructions is likely to be productive of further unfairness in the course of the cross-examination.”[16](2021) 274 CLR 351 at [34] – [35].