R v Umatia

Case [2023] QCA 262

SUPREME COURT OF QUEENSLAND

CITATION:

R v Umatia [2023] QCA 262

PARTIES:

R
v
UMATIA, Minahaj Ali
(appellant)

FILE NO/S:

CA No 91 of 2023
DC No 152 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 12 May 2023 (Rosengren DCJ)

DELIVERED ON:

Date of Orders: 15 December 2023
Date of Publication of Reasons: 19 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

14 November 2023

JUDGES:

Morrison and Dalton and Boddice JJA

ORDERS:

Date of Orders: 15 December 2023

1.   Appeal allowed.

2.    The conviction on count 3 is set aside and a retrial on that count ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of two counts of sexual assault (counts 1 & 2) and one count of rape (count 3) – where the jury were misled by the prosecution to embark upon a line of reasoning that was not open and it is not possible to say they did not do so – where in the summing up to the jury, the trial judge erred in making a misstatement about the evidence – where the directions given to the jury in relation to s 24 of the Criminal Code (Qld) did not explain how the law should be applied to the facts – whether a miscarriage of justice has occurred

COUNSEL:

M J Copley KC for the appellant
M A Green for the respondent

SOLICITORS:

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

  1. MORRISON JA:  On 12 May 2023 the appellant was convicted following a trial on two counts of sexual assault and one count of rape.

  2. The appellant originally challenged the verdicts on the ground that they were unreasonable and could not be supported having regard to the evidence.  Prior to the hearing that ground was abandoned and replaced with three grounds, each dealing with a specific error.  It was contended that a miscarriage of justice was caused by:

    (a)Ground 1 – a prosecution submission that the jury could regard a positive presumptive test in relation to two swabs as evidence capable of supporting the complainant’s evidence that intercourse occurred;

    (b)Ground 2 – the learned trial judge’s misstatement of the evidence; and

    (c)Ground 3 – inadequate directions concerning s 24 of the Criminal Code (Qld).

  3. The prosecution case on each count was particularised as follows:

    (a)count 1 relied on the touching of the complainant’s breasts and/or thighs;

    (b)count 2 relied on the kissing of the complainant’s neck; and

    (c)count 3 relied on penile/vaginal intercourse.

  4. The defence case was that the complainant consented to the acts constituting count 1, or that the appellant honestly and reasonably believed that the complainant consented. Further, the defence case was that the acts relied on for counts 2 and 3 did not occur at all, but if the jury formed the view that they did, then the prosecution could not negative s…

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AGLC
R v Umatia [2023] QCA 262
Case
[2023] QCA 262
Decision Date

CaseChat Overview and Summary

The case of R v Umatia involves the appellant, who was convicted of two counts of sexual assault and one count of rape. The appellant appealed against his convictions, claiming a miscarriage of justice due to the trial judge's misstatement of evidence and improper jury directions concerning the statutory defence under s 24 of the Criminal Code (Qld). The appeal centred on whether the trial judge's errors led to a miscarriage of justice, warranting a retrial.

The primary legal issues the court had to address were whether the trial judge's misstatement of evidence about the PSA test misled the jury and whether the jury directions on the statutory defence under s 24 were adequate. The court had to determine if the trial judge's comments about the PSA test constituted a misstatement that could have misled the jury and whether the jury was properly directed on how to apply the statutory defence to the facts of the case.

The court found that the trial judge's comments on the PSA test constituted a misstatement of evidence, which could have misled the jury, thus contributing to a miscarriage of justice. Additionally, the court held that the jury directions on the statutory defence under s 24 did not adequately relate the defence to the facts or explain how the law applied to the case, leading to an insufficient understanding of the defence. However, the court rejected the argument that the defence's case concerning the complainant's consent and belief in consent was mishandled.

Based on the findings, the court allowed the appeal, set aside the conviction on count 3, and ordered a retrial on that count. The judges unanimously agreed on the proposed orders, emphasising the necessity to correct the errors identified to ensure a fair trial.

Orders

Orders of the court

Date of Orders: 15 December 2023

1. Appeal allowed.

2. The conviction on count 3 is set aside and a retrial on that count ordered.

Background

Background to the litigation

The defence case was that the complainant consented to the acts constituting count 1, or that the appellant honestly and reasonably believed that the complainant consented. Further, the defence case was that the acts relied on for counts 2 and 3 did not occur at all, but if the jury formed the view that they did, then the prosecution could not negative s 24 of the Code in relation to them.Evidentiary background The following synopsis of the evidence at the trial is drawn from the appellant’s outline before this Court. The Crown accepted that that summary could be relied upon as the framework for considering the grounds of appeal. On 19 March 2021 the complainant went to Fortitude Valley in the evening, where she met some friends. Later that evening she went to another establishment. By the time she left it she said she was “very, very, very drunk”.[1][1]AB 479 line 14. Whilst she was in the Valley Mall the appellant approached her and asked if she wanted a lift. She told him she had no money and he said he would drive her home for free.[2] She asked him if he was an Uber driver but could not remember listening for the answer.[3][2]AB 481 lines 1-6.[3]AB 481 line 8. They walked to his car and she got in the front passenger seat. She told him her address and he made an entry on his phone. The complainant said that she was really drunk and tired. On four or five occasions he stopped the car. He leant over from his seat and touched her breasts and thighs with his hands. He started touching above her dress and pulled it down. It was a strap dress. She was not wearing a bra. He touched her exposed breasts with his hands. The dress was also fairly short and he ran his hands up her thighs. The complainant said she just “froze”. She did not do or say anything. She said she was pretty much paralytic, almost blacked out, she just did not do anything.[4][4]AB 483-485. The complainant explained her reaction when the appellant started to touch her:[5]“Okay. All right. Now, can you recall when this happened what did you do?---I just froze. Nothing. I – yeah. I didn’t do anything.Okay. Did you say anything at this point in time?---No.”[5]AB 484 lines 7-10. She was asked to explain what she meant by “froze” and about the effect of the alcohol upon her at the time the appellant was touching her:[6]“Firstly, just in relation to the alcohol that you’ve drunk; did that have any effect on you at this point?---Definitely. I was pretty much – like, I wasn’t functioning properly. Like, I was pretty much paralytic, like, almost blacked out. Like, I was struggling to speak or – yeah.Okay. And, now, when this was happening, you mentioned you froze, but can you tell us about what sort of feelings that you were feeling at that point in time in terms of your emotional state?---Scared. Vulnerable. Like, dumb. Just I – I didn’t know what to do.When you - - -?---And I just didn’t do anything.”[6]AB 484 line 42 to AB 485 line 4. She explained that she was “stuck in a car with a man that I didn’t know and I was too drunk to do anything”.[7][7]AB 485 line 7.

Evidence

Evidence Before The Court

The jury were misled by what was said to them in the passage referred to in paragraph [31] above. They were invited to embark upon the line of reasoning that was not open. It is not possible to say they did not do so. There has therefore been a miscarriage of justice and this ground must succeed.Ground 2 – Misstatement of evidence by the trial judge In that part of the summing up which dealt with a summary of the addresses of each side, the trial judge said:[23]“There is the possible presence of the seminal fluid. The Crown relies on the PSA test which shows the higher levels of seminal fluid in the internal vaginal swabs, that it could be seminal fluid.”[23]AB 53 lines 39-42. Before this Court the Crown accepted that it was misstatement of the evidence to say so. The PSA test did not show “higher levels of seminal fluid in the internal vaginal swabs”. Although this was something said in the course of summarising the submissions of the Crown, and not as part of the judge’s summing up otherwise, it nonetheless misrepresents what the Crown said. Further, there is a possibility that even though this was part of summarising the Crown’s submissions, the jury might have been distracted into thinking that the PSA tests showed that seminal fluid had actually been located on the two internal swabs. That is not the case. The PSA test was simply whether the particular antigen was present or not, and a positive test simply meant “the possible presence of seminal fluid”.[24] As the expert explained:[25]“What is a presumptive chemical test?---So presumptive test refers to the fact that it’s not definitive for the presence of that thing we’re looking for. So in this instance, as we discussed earlier, the PSA present in high levels of semen, so you’d expect to find it, if there’s semen there, you’d expect to get a PSA positive. It helps us locate the presence of seminal fluid but knowing that there are other biological fluids that can also contain some quantities of PSA, we can’t say it’s definitive for the present of semen, because it could be a reaction caused by the presence of PSA from another biological source.”[24]AB 315 line 29, AB 316 lines 1-9.[25]AB 323 lines 1-9. The possibility of the jury being misled by that comment, albeit that it was in the summary of submissions made by the Crown, cannot be ruled out. Consequently, the contention that there has been a miscarriage of justice on this ground should be upheld.Ground 3 – Honest and reasonable belief – s 24 of the Code This ground concerns the fact that the directions on the s 24 defence did not relate the issues to the facts relevant to those issues or explain how the law applied to those facts.[26][26]RPS v The Queen (2000) 199 CLR 620 at 637 [41]; Fingleton v The Queen (2005) 227 CLR 166 at 197 [77]. At trial the Crown accepted that a s 24 defence was open and that the jury should be directed upon it. The prosecutor turned to that issue at the end of her address,[27] the jury were told that “what you need to do is examine [the complainant’s] account as well as the defendant’s, which I would suggest you would find not credible.”[28] Then, telling the jury to look “at the circumstances of the evidence that you have before you”, the prosecutor went on:[29]“Again, look at the relevant features in the matter. They are relative strangers. There seems to be an age difference, because [the complainant] believed he was older. There was no sexual desires expressed by her. She indicated that she was not interested in this man. There is no reasonable way that this defendant could believe this young girl, who is a stranger, who is trying to get home, wanted to have unprotected sex in a dirty car. She was frozen when he first started touching her breasts and thighs. She turned away from his when he kissed her. She said she was frozen during the penile penetration and her head was turned away and she was crying.Given how he was on top of her, he would have had to have seen this. There is no basis in this case, I’d submit to you, for you to accept that the defendant was mistaken in law as to the question of consent.”[27]Transcript 12 May 2023, T1-11 to T1-12.[28]Transcript T1-12 lines 8-9. Emphasis added.[29]Transcript 12 May 2023, T1-12 lines 16-27.

Decision

Reasons for decision

This ground fails.Conclusion Grounds 1 and 2 have succeeded but ground 3 has failed. Accordingly, I propose the following orders:1. Appeal allowed.2. The conviction on count 3 is set aside and a retrial on that count ordered. DALTON JA: I agree with the orders proposed by Morrison JA and with his reasons. BODDICE JA: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

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