Ali Chaouk v The Queen

Case [2022] VSCA 151
SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0089

ALI CHAOUK Applicant
v
THE QUEEN Respondent

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JUDGES: PRIEST, BEACH and McLEISH JJA
WHERE HELD: Melbourne
DATE OF HEARING: 29 July 2022 
DATE OF JUDGMENT: 4 August 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 151
JUDGMENT APPEALED FROM: DPP v Chaouk (Unreported, Supreme Court of Victoria, Bell J, 11 December 2018) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Murder – Shooting – Alibi – Evidence in support of alibi evidence from prosecution witnesses – Applicant’s wife and mother-in-law gave evidence that he was at home at time of shooting – Whether judge should have directed that jury’s rejection of alibi was not to be used against applicant – Direction not sought by applicant’s counsel – Whether substantial and compelling reasons for direction – Leave to appeal refused – Criminal Procedure Act 2009 s 3(1); s 190(1) – Jury Directions Act 2015 s 11(b)(ii); s 12; s 16(1) – R v J (No 2) [1998] 3 VR 602; Killick v The Queen (1981) 147 CLR 565; R v Juric (2002) 4 VR 411; R v Turnbull [1977] QB 224; R v Merrett (2007) 14 VR 392 considered.

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Counsel
Applicant: Mr P Lange
Respondent: Mr C Boyce QC with Ms K Crennan

Solicitors
Applicant: Hanna Legal
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
MCLEISH JA:

Introduction

  1. Shortly before 7.50 pm on 20 June 2009, on the street outside 85 Fifth Avenue, Altona North, Mohammed Haddara, was shot five times.  He died as a result.

  2. Throughout November and December 2018, the applicant was tried before a jury in the Supreme Court for Mr Haddara’s murder.  The applicant’s defence was that, at the time of the shooting, he was at home having dinner with his wife and mother-in-law.  He did not leave the home until 9.00 pm, so could not have shot Mr Haddara.  The sole issue in the trial, therefore, was whether the applicant was the person who fired the fatal shots, none of the other elements of murder being in issue.

  3. On 11 December 2018, the jury found the applicant guilty of murder.[1]

    [1]On 13 June 2019, the trial judge sentenced the applicant to 24 years’ imprisonment, with a non-parole period of 18 years.  See DPP v Chaouk [2019] VSC 381.

  4. The applicant now seeks leave to appeal against his conviction on a single ground, formulated as follows:

    A miscarriage of justice was occasioned in the absence of a direction that, if the jury were to conclude that the alibi evidence advanced on behalf of the applicant had been disproved by the Crown beyond reasonable doubt, then such a rejection should not be used against the applicant, in circumstances where there were substantial and compelling reasons for giving such a direction.

  5. In our opinion, the complaint embodied in the ground is without substance.  We would therefore refuse leave to appeal.  Our reasons follow.

Overview of the prosecution case

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Ali Chaouk v The Queen [2022] VSCA 151
Case
[2022] VSCA 151
Decision Date

CaseChat Overview and Summary

In the case of Ali Chaouk v The Queen, the appellant sought to appeal against his conviction and sentence for murder, claiming that the trial judge should have directed the jury that it should not conclude that the appellant raised an alibi to conceal his guilt if the jury rejected the alibi evidence. The appellant's wife and mother-in-law had testified that he was at home at the time of the shooting, but this evidence was adduced by the prosecution, rather than by the appellant himself. The appellant's counsel did not seek the direction that the jury should be instructed not to conclude that the appellant raised an alibi to conceal his guilt if they rejected the alibi evidence. The Court was required to decide whether the trial judge should have directed the jury in this way, and whether there were substantial and compelling reasons for such a direction.

The Court noted that it was often difficult for the prosecution to anticipate that an alibi would be raised by the defence, and that evidence in support of an alibi would often first emerge in the course of the defence case. For this reason, provisions such as s 190 of the Criminal Procedure Act 2009 exist to ensure that the prosecution is not taken by surprise by an ‘alibi defence’ disclosed for the first time at trial. However, when the accused raises an alibi, two problems almost always arise. The first is a tendency of the jury to infer that the onus of proving that the accused was not where the prosecutor says he was lies upon the accused. The second is that, if the jury regards the alibi as false, they will immediately conclude that the accused is raising it to conceal his guilt. For these reasons, there is usually a requirement, where an alibi is raised, for careful instructions from the judge as to the manner in which the jury should approach alibi evidence. In this case, the Court considered that particular care was called for in directing the jury as to what conclusions they could draw from a rejection by them of the alibi evidence. This was because the offences to which the counts related had occurred many years before the allegations were first made. There was, therefore, scope both for misconstruction of the particular date upon which the offence had occurred and the date or dates upon or between which the appellant believed he was out of the State. Hence it was a case where the failure to prove the alibi did not necessarily lead to the conclusion that he had raised it out of a desire to conceal guilt. However, since the appellant's counsel did not seek the direction, and since the evidence in support of the alibi was adduced by the prosecution rather than the appellant, the Court found that there were no substantial and compelling reasons for the trial judge to have directed the jury in the way the appellant now sought.

The Court found that the trial judge was not required to direct the jury that it should not conclude that the appellant raised an alibi to conceal his guilt if they rejected the alibi evidence. The Court also found that there were no substantial and compelling reasons for such a direction. The appeal was dismissed.

The Court did not make any orders as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Importantly, s 190(1) of the CPA provides – as did its immediate legislative forerunner, (now repealed) s 399A of the Crimes Act 1958 – that an accused person cannot, without leave of the trial judge, adduce evidence in support of an alibi unless he or she has first given notice to the DPP:190 Alibi evidence(1) An accused must not, without leave of the court—(a)give evidence personally; or(b)adduce evidence from another witness—in support of an alibi unless the accused has given notice of alibi … . Succeeding subsections of s 190 deal (among other things) with the period within which service on the DPP is required; the method of service; and the particulars that must be included. Although the evidence of Rana Hoblos and Sabah Hoblos was characterised in this Court as ‘alibi evidence’, it was not caught by the provisions of s 190, since the applicant neither gave evidence in support of an alibi ‘personally’, nor ‘adduce[d] evidence from another witness’ in support of an alibi. Instead, the evidence tending to show that the applicant ‘was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission’, was adduced by the prosecution. Provisions such as s 190 exist because it is often difficult for the prosecution to anticipate that an alibi will be raised by the defence, and because evidence in support of an alibi will often first emerge in the course of the defence case. In effect, the provisions of s190 (and similar provisions) are designed to ensure that the prosecution is not taken by surprise by an ‘alibi defence’ disclosed for the first time at trial. (In this case, of course, the alibi evidence that Rana and Sabah Hoblos might provide had been known to the prosecution since their statements were made on 24 June 2009.) It has been recognised that when the accused raises an alibi, two problems almost always arise. Thus, Winneke P and Charles JA observed in J (No 2):[13]Where an accused person raises what is commonly called an ‘alibi defence’, twin problems of practical significance will almost inevitably arise. The first is a tendency of the jury to infer that the onus of proving that he was not where the prosecutor says he was lies upon the accused. The second is that, if the jury regards the alibi as false, they will immediately conclude that the accused is raising it to conceal his guilt. For these reasons there is usually a requirement, where an alibi is raised, for careful instructions from the judge as to the manner in which they should approach alibi evidence. In the case of counts 6 and 8 particular care, in our view, was called for in directing the jury as to what conclusions they could draw from a rejection by them of the alibi evidence. This was because the offences to which the counts related had occurred many years before the allegations were first made. There was, therefore, scope both for misconstruction of the particular date upon which the offence had occurred and the date or dates upon or between which the applicant believed he was out of the State. Hence it was a case where the failure to prove the alibi did not necessarily lead to the conclusion that he had raised it out of a desire to conceal guilt. …[13]J (No 2), 629–30.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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