Ali Chaouk v The Queen

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

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.
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.
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.
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.
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

A remarkable feature of this case is that the applicant was not the first person to be charged with Mr Haddara’s murder. Ahmed Hablas (‘Hablas’) had that distinction. He confessed to killing Mr Haddara, and was charged by police on 28 June 2010. Despite his confession, however, a jury in the Supreme Court acquitted him of murder on 4 October 2011. The applicant was subsequently charged with Mr Haddara’s murder. Hablas was a pivotal witness for the prosecution in the applicant’s trial.
Evidence in the trial revealed the existence of great animosity between the applicant and Mr Haddara, that animosity being apparent in telephone exchanges between them in the lead-up to Mr Haddara’s killing. In their last telephone conversation, the two agreed that they would meet ‘one on one’. The prosecution case was that the applicant took a firearm to that meeting.
As we have said, Mr Haddara was shot shortly before 7.50 pm on 20 June 2009 in the street outside 85 Fifth Avenue, Altona North.[2]
[2]At 7.49.33 pm, a telephone call was made to the ‘000’ emergency number by a nearby resident, Sonia Badra, who had heard gunshots.
On the prosecution case, the applicant arrived at the scene by motor vehicle at about 7.30 pm. When he arrived, Mr Haddara – who was unarmed – was already standing in the street alone. The applicant then alighted from his vehicle and shot Mr Haddara five times. Pathology evidence established that Mr Haddara was shot twice to his side and three times to his back, one of those five shots being delivered when he was lying on the road. No others were present. Nearby residents, and Mr Haddara’s cousin and brother, soon attended, and police and ambulance services arrived soon after that. Mr Haddara could not be saved, and he died where he was shot.
It was not disputed that, during part of the evening of 20 June 2009, the applicant had been at his home at 6 Cypress Avenue, Brooklyn, when he had a telephone conversation with Hablas – his wife’s cousin – at about 7.30 pm. On the prosecution case, Hablas was in a car with Mr Haddara and another man, Ghazi Haddara. Hablas’ evidence was that he was being driven to the Haddara family home where he was to be assaulted. According to Hablas, Mr Haddara menaced him, and, among other things, said to him, ‘You’re a fucking dead man now’.
The prosecution case was that, shortly after the applicant and Hablas spoke, there was at least one further telephone conversation between the applicant and Mr Haddara, during which they agreed to meet. As a result, the applicant left his home in a silver Holden Commodore, drove to Fifth Avenue, Altona North, and shot Mr Haddara. Thereafter, before going home, the applicant drove to the home of an associate, where he showered, arranged for his clothes to be destroyed and disposed of the firearm.

The applicant’s alibi

The applicant’s wife, Rana Hoblos, made a statement to the police a few days after the killing, on 24 June 2009. She described the movements of her husband, and her cousin, Hablas.
Sabah Hoblos, Rana Hoblos’ mother, also made a statement to police on 24 June 2009, concerning her son-in-law’s movements on the evening of 20 June 2009.
The gist of the statements provided by Rana and Sabah Hoblos was that, on the evening of the shooting, the applicant was at home sharing a meal with them, and did not leave home until approximately 9.00 pm, sometime after Mr Haddara was killed.
As the following pre-trial exchange between the trial judge and prosecutor shows, the prosecution initially did not intend to call Rana or Sabah Hoblos to give evidence, on the basis that they were not witnesses of truth. Defence counsel informed the judge that the prosecution did not intend to call ‘two witnesses that give an alibi to my client’, so that he would likely seek a pre-emptive ruling under the Jury Directions Act 2015 (presumably s 43). There was then the following exchange between the judge and counsel:[3]
[3]Emphasis added.
HIS HONOUR: Did I hear you correctly, that these witnesses provide alibis for your client?
[DEFENCE COUNSEL]: Yes, Your Honour.
HIS HONOUR: Yes. I’m sure that can’t be right. Mr [Prosecutor], that can’t be right, what I’ve just heard. That you’re not calling alibi witnesses?
[PROSECUTOR]: It is right, Your Honour.
HIS HONOUR: Yes.
[PROSECUTOR]: The circumstances that I perceived them as this [sis]. The two witnesses are Mr Chaouk’s wife, Rana Hoblos.
HIS HONOUR: Yes, I see. Yes.
[PROSECUTOR]: And her mother.
HIS HONOUR: I see. So there are other issues involved.
[PROSECUTOR]: And the position is that those two witnesses as I understand their evidence, say in effect, that Mr Chaouk was at home with them at his own home, across a period of time, on the evening of 20 June.
...
[PROSECUTOR]: And so those witnesses say in effect, that he – that Mr Chaouk was at home at his own house with his wife and his mother-in-law, having a meal at the time of the shooting, in effect.
HIS HONOUR: Yes.
[PROSECUTOR]: Having been for a walk earlier, returned home, having a meal, and then goes out some time later. So, in that circumstance, the prosecution view is that they are not telling the truth, they can’t be.
HIS HONOUR: Why not?
[PROSECUTOR]: Because the prosecution says that Mr Chaouk was not at home, he’s in 5th Avenue shooting Mr Haddara.
HIS HONOUR: But that’s a proposition that can only be determined by the jury.
[PROSECUTOR]: That’s right.
HIS HONOUR: On the whole of the evidence.
[PROSECUTOR]: Yes.
HIS HONOUR: As to which his alibi evidence is material. So you need to re-think your course in this - - -
[PROSECUTOR]: Well, I’ll just – I’m certainly happy to re-think it.
HIS HONOUR: Yes.
[PROSECUTOR]: On Your Honour’s advice.
HIS HONOUR: Well, it doesn’t make logical sense.
[PROSECUTOR]: Perhaps I’m not expressing - - -
HIS HONOUR: On the basis that you’ve just described, does not make logical sense, within the four corners of trial procedure.
[PROSECUTOR]: But the prosecution says that they’re not witnesses of truth.
HIS HONOUR: But that’s not a basis upon which you can decline to call them.
[PROSECUTOR]: Well, I may well have to re-think it. If Your Honour’s right about that - - -
HIS HONOUR: Yes. I will leave this one open.
[PROSECUTOR]: Sure.
HIS HONOUR: I’m expressing myself more emphatically than I really am and I’d like to look at this more closely. The general proposition as you well-know, is that all relevant evidence comes from you. If you’ve got a proper basis for declining to call this evidence - - -
[PROSECUTOR]: That’s the situation effectively.
HIS HONOUR: Then if you think your proper basis is proper, then rely upon it, I’ll rule on it. But have a look at it - - -
[PROSECUTOR]: Yes, Your Honour.
HIS HONOUR: - - - and we’ll see. But I understand what you just said.
We need not pause to consider whether the trial judge was correct to assert that the prosecutor’s assessment that the witnesses were not witnesses of truth did not provide ‘a basis upon which [he could] decline to call them’,[4] since, as the following discussion shows, the prosecutor ultimately opted to call them (albeit indicating that he would seek to treat them as unfavourable witnesses):
[4]See, eg, Shaw v The Queen (1952) 85 CLR 365; Richardson v The Queen (1974) 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657; R v Apostilides (1984) 154 CLR 563; Dyers v The Queen (2002) 210 CLR 285; R v Shaw (1991) 57 A Crim R 425; R v Armstrong [1998] 4 VR 533; R v Kneebone (1999) 47 NSWLR 450.
[PROSECUTOR]: But can I perhaps just update you on one issue that comes to my mind.
HIS HONOUR: Yes.
[PROSECUTOR]: In relation to the two witnesses, alibi witnesses.
HIS HONOUR: Yes.
[PROSECUTOR]: I’ve come to the firm view that Your Honour was right.
HIS HONOUR: I see.
[PROSECUTOR]: I had a look at the - - -
HIS HONOUR: Look at the authorities and what your applications [scil, options?] are and so on. Yes.
[PROSECUTOR]: And so in the context of anticipating an application for s 38 [of the Evidence Act 2008] in relation to both of them, really on the unfavourable limb, I’d propose to call them.
HIS HONOUR: Yes, very well. …
When called by the prosecution, Rana Hoblos gave evidence that she and the applicant married in 2008. They were at home together on the evening of 20 June 2009. Her husband went for a walk at about 6.00 pm. Hablas arrived about five or ten minutes later, but was gone by the time her husband arrived back home at about 7.00 pm. Her mother arrived with food around 7.30 pm. They ate for half an hour or so, before the applicant went outside to smoke whilst she made coffee. When the applicant came back inside, the three of them conversed over coffee. She estimated that the applicant left the house a second time half an hour or 45 minutes after his smoke: ‘It would have been around 9.00 o’clock’. Her mother, she said, left 10 or 15 minutes later.
Once Rana Hoblos had given this evidence, the prosecutor sought – and was granted – the leave of the trial judge under s 38 of the Evidence Act 2008 to challenge it. Having been provided with her statement to police, the witness was then cross-examined. The cross-examination included the following:[5]
[5]Emphasis added to this and following passages.
Now, I want to suggest to you, Ms Hoblos, that Ali [i.e. the applicant] left your home – sorry, I’ll start that again – I want to suggest to you that your mum arrived with some food, as you say he did, and I want to suggest that very shortly after that point in time, Ali received a phone call whilst he was in the backyard, okay; does that accord with your recollection?---So after - - -
Yes, I need to make it perfectly clear. What I’m suggesting to you, that really within minutes of your mum arriving with the food and sitting down, Ali’s outside receiving a phone call; what do you say to that? Rather than any longer period of time before he receives a phone call?---I don’t remember.
Okay, and what I want to suggest to you is that when Ali received that phone call and was in the backyard, that’s when he left the house?---He left the house when?
Well, I’ll suggest to you somewhere in the vicinity of about 7.30?---Impossible.
Okay. And that he never returned from that time onwards?---[From] 7.30, he never returned?
Yes?---No, that’s impossible.
Okay, you say it’s much later?---Yes.
All right. And what I suggest to you is that, really, [you’re] telling this jury that your husband, Ali, left the house for the last time soon after 9 o’ clock because that gives him an alibi for this shooting; what do you say to that proposition?---Well, I didn’t know there was anything, so no.
All right?---So he left at nine and that’s the time that he left, when I gave the statement.
And that’s what you say?---That’s what I’m saying.
That it’s 9 o’ clock?---Nine o’ clock.
So when I suggest to you that you’re telling a lie about that, you reject that suggestion?---Can you repeat that?
When I suggest to you that you’re lying about him leaving at 9 o’ clock, you deny that your lying about it?---That’s right.
…
All right. I take it your mother wasn’t with you when you were giving your statement?---No, she wasn’t, yeah,
All right. Did your husband, Ali, tell you what to put in your statement about his movements on this night?---No, he didn’t.
I suggest that you’ve told the version of events that you have, that is having your husband, Ali, at home in effect from about – sorry, excuse me – well, perhaps I’ll do it this way, Ms Hoblos. What time do you say Ali came home from his first walk?---From his first walk?
Yes?---Probably around seven or just after.
And I understand what you say, from that point in time until about 9 o’clock he’s at home?---He’s at home.
And I suggest to you that you’re telling a lie about that?---You’re saying I’m lying?
Yes?---No.
Sabah Hoblos also gave evidence in the prosecution case. She said that she took food to her daughter’s home on 20 June 2009, but did not know what time she arrived, only that it was dark. Her evidence was that the three of them ate as soon as she arrived, and the applicant then went outside for a cigarette or a telephone call. He was outside for 10 minutes or so. It was not long after he came back inside that she left. When asked what time she left to go home, she said: ‘Ah, I can’t remember, maybe it was 9 o’clock, because I have a few things to do at home’.
After Sabah Hoblos gave this evidence, the prosecutor was given leave to cross-examine her. In the course of that cross-examination she was taken both to what she had said in her statement to police, and to evidence that she had given to the Chief Examiner.[6] The cross-examination included the following:
[6]See Major Crime (Investigative Powers) Act 2004, s 29.
So I’ll now continue with your evidence [before the Chief Examiner], “I went to kitchen and my daughter ate straight away. The most things she ate was the soup. I stayed for a bit, then I went back home. Ali was at home, I didn’t stay for long”?---Yeah, I didn’t stay long, maybe a total of one hour or so. I can’t remember exactly.
At the moment, [Ms] Hoblos, I’m just – I want to read to you what you said on this occasion and then I’ll ask you some questions, okay? “Ali was at home, then he went – then he was outside, was on the phone but I didn’t see him after that. He was talking to someone. He was at home, but, you know, when someone rings, they – people take the phone and he went outside whilst on the phone and I didn’t see him after that.” Did you give that evidence?---Well, I’ve asked my daughter, Where is Ali, and she said - - -
No, no, my question is did you give that evidence?---For sure, if since it’s, it’s recorded, so for sure, I have given that evidence.
All right, thank you. And was it true?---Sure.
That is, “Ali went outside whilst on the phone and I didn’t see him after that”, was that true?---I did not see him personally on the phone, but I asked my daughter, “Where is Ali?” She said, “He’s outside, he might be on the phone.”
So do you say that after Ali was on the phone, you did or did not see him again that evening?---Yes, he came inside and he ah, say, “Goodnight, I’m going”, and after that I left, myself.
And did he do that immediately after he’d been on the phone?---How was that?
Did Ali come inside and say goodnight and leave immediately after he had been on the phone?---Yes.
I’m going to continue with your evidence. Where the chief examiner asks you this question. “Did Ali eat any of your food”?---Yes, I think.
And you gave this answer: “Rana called him and she told him to come and eat?---I think. I can’t remember.
“She said, ‘Look what Mum cooked’. He came. Maybe he had one bite. He didn’t stay for long. It was a quick one”. The chief examiner asks, “You said before that he left and went outside to take a phone call; is that correct?” Your answer: “Yeah”. Question from the examiner?---Could be I said yes. Um I can’t remember.
Question from the examiner: “So was this after he’d taken just a small amount of the food?” Your answer: “Yes”. Question from the examiner: “So did you see him again that night?” Your answer: “No”. Did you give that evidence?---Well, you’re asking me from a - a record of um questions that has been almost ten years now. Can’t remember what I said ah but as long as it’s recorded on the paper that means, well, that’s might be well true.
…
Ms Hoblos, I want to make a suggestion to you. That what really happened on this night at Rana’s house was this. You arrived with your food. You sat down with Ali and Rana to eat?---(Direct) Yeah.
Almost immediately Ali takes a phone call in the back yard?---No.
I suggest that Ali had very little food before he was interrupted by that phone call?---(Through interpreter) Can’t remember.
And I suggest that after that phone call you did not see Ali again that night?---I can’t remember. All I - all I remember that at the end he left. He said, “I’m - I’m going”.
And I suggest to you that when you told this jury today that the three of you sat down for a meal, and that then Ali went outside for a smoke, that he returned inside and remained with you in the home until about ten minutes before you left that - - - ?---Correct.
That that was untrue?---Why?
Because of what you told the chief examiner on oath?---Well, could be um – um I forgot. I can’t remember, I can’t remember um what happened in particular day all this time.
All right. Just so that it’s clear that you understand. What I’m suggesting to you is this. You told this – sorry, I withdraw that. You told the chief examiner that Ali took a phone call soon after you arrived and he then left the house, and I suggest to you that was at about 7.30 or thereabouts?---Well, it was only approximate, about 7.30. It was dark. I can’t remember. It was dark and it was approximately, I can say, 7.30. I remember I went there, I took the food to my daughter. They opened the door for me. We took the food inside. That’s all I remember.
…
[PROSECUTOR]: And can I suggest that Mrs Hoblos, what you’re trying to do falsely by telling a lie is tell this jury that Ali was at home up until about ten to 9 or something of that nature when he wasn’t?
INTERPRETER: About what, sorry?
[PROSECUTOR]: Ten to 9.
INTERPRETER: Ten to 9, okay.
[PROSECUTOR]: But he was not?---I can’t tell what time was it when I went there but the time I left her home was around 9 o’clock.
And you say today to this jury, Ali left the house about ten minutes before you left the house?---Correct, that’s approximately. I did not look at my watch but that's what’s happened.

The prosecution case was that the alibi witnesses lied

In his final address, the prosecutor asserted that both the applicant’s wife, and her mother, had lied. His address included the following:
This involves the alibi that Rana Hoblos is said to provide. Well, Sabah Hoblos’ evidence to the Chief Examiner completely undermines that alibi evidence. Sabah Hoblos said Mr Chaouk was nowhere to be seen after he gets that phone call, ‘not long after I’ve been at the house, about 7.30 I get there’. A fraction earlier perhaps.
Rana Hoblos would have you believe that Mr Chaouk is really at the house all the way up until about 9 o'clock. Having returned from his first walk at seven, he goes out for his second walk, I think she said, about ten to nine, maybe 9 o'clock, but between that he’s home the whole time, which of course includes the time of this shooting.
But it’s Sabah’s evidence that makes perfect sense. He gets that kind of phone call. He doesn’t come back in, just sits around and has a coffee. He does exactly what she said he did, off he goes, to the Amby^[[7]] in that silver Commodore.
So in our submission Rana Hoblos is wrong deliberately to provide Mr Chaouk with an alibi. “He’s at home with me when this shooting takes place.” In her evidence she says “By the time Mr Hablas is knocking on my window, Ali’s gone for his second walk”, she says, “at about 9.30”. In my submission that’s a lie. What is true about it is when Mr Hablas turns up at that house, Mr Chaouk is not there. He’s already left because of that phone call.
And where does Mr Chaouk go? Well, he goes to where he’s meant to go …
[7]The scene of the shooting was in Fifth Avenue, Altona North, adjacent to a football oval called the ‘Amby’.

Submissions of the parties in this Court

The thrust of the applicant’s case in this Court was that the judge should have directed the jury that, if they concluded that the alibi evidence had been disproved by the prosecution to the criminal standard, then such a rejection should not be used against the applicant. Counsel for the applicant submitted that there was a risk that the jury might use their rejection of the alibi evidence either as support for the evidence of Hablas that the applicant was the shooter (effectively reversing the onus of proof) or as an implied admission of guilt on the part of the applicant.
Counsel for the applicant conceded that the applicant’s counsel at trial – he was represented by both senior and junior counsel – had not asked for such a direction. Consistently with s 16(1) of the Jury Directions Act 2015 (‘JDA’), however, there were ‘substantial and compelling reasons for doing so even though the direction [had] not been requested’. Relying on J (No 2)[8] (in which Killick[9] was cited), Juric[10] (in which Turnbull[11] was cited) and Merrett,[12] counsel submitted that a substantial miscarriage of justice had flown from the failure to give the putative direction, notwithstanding the failure of counsel to ask for it.
[8]R v J (No 2) [1998] 3 VR 602, 631 (Winneke P and Charles JA) (‘J (No 2)’).
[9]Killick v The Queen (1981) 147 CLR 565, 573–4.
[10]R v Juric (2002) 4 VR 411, 436 (‘Juric’).
[11]R v Turnbull [1977] QB 224, 230 (Lord Widgery CJ).
[12]R v Merrett (2007) 14 VR 392, 396 [17] (Maxwell P).
The respondent submitted that there were no substantial and compelling reasons to give the direction now claimed to be essential. Seven reasons were advanced. First, there was no evidentiary basis – as opposed to mere speculation – that the applicant had persuaded the witnesses to provide a false alibi. Secondly, there was no reliable evidentiary basis to infer that the applicant had ‘leaned’ on his wife or mother-in-law. Thirdly, the prosecutor ultimately did not make a case that the applicant had prevailed on the witnesses to lie, and the defence emphasised their independence. Fourthly, the directions sought by defence counsel at the end of the evidence ‘expressly avoided any reliance upon the direction that it is now said should have been given’. Fifthly, such directions as the judge did give effectively foreclosed the kind of reasoning to which the ground of appeal is directed. Sixthly, the circumstances of the present case are a ‘far cry’ from the factual circumstances of the authorities upon which the applicant’s counsel relies. Finally, there was no risk in this case of any improper reversal of the onus of proof.

Discussion

For the purposes of the Criminal Procedure Act 2009 (‘CPA’), s 3(1) provides that ‘evidence in support of alibi’ is
evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time the accused 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; …
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.
The problems associated with the accused raising a false alibi were also discussed in Juric, in which the Court (Winneke P, Charles and Chernov JJA) said:[14]
If a jury is made aware that an accused has raised a false alibi there is a danger that they will immediately conclude that the accused is raising it to conceal his guilt: R v J (No 2).[15] The raising of a false alibi may well demonstrate a consciousness of guilt: Killick v R.[16] In Killick Gibbs CJ, Murphy and Aickin JJ said[17] that evidence establishing the falsity of an alibi ‘dealt a fatal blow to the applicant’s case’ and that the evidence was likely to have been decisive of the jury’s verdict. Wilson and Brennan JJ dissenting, pointed out[18] that a Crown case is likely to be strengthened by the jury’s opinion, to which the verdict testified, that the applicant put forward a false alibi at his trial.
In R v Turnbull,[19] Lord Widgery CJ, speaking for a five-member court said:
Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward can fabrication provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was.
[14]Juric, 436 [39]–[40] (citations as in original).
[15][1998] 3 VR 602 at 629.
[16](1981) 147 CLR 565 at 571, 576.
[17]At 572–3.
[18]At 573–4.
[19][1977] QB 224 at 230.
In the present case, the defence did not introduce evidence tending to show that, by reason of the applicant being at home with his wife and mother-in-law, he was not present when Mr Haddara was fatally shot. To risk repetition, the relevant evidence was introduced by the prosecution, in circumstances in which the applicant’s counsel had complained to the trial judge that the prosecution did not intend to call Rana and Sabah Hoblos. Indeed, it was only after the judge gave a strong indication that he considered that the prosecution ought to call the witnesses that the prosecution changed its stance. Self-evidently, the discussions about the ‘alibi’ evidence having occurred pre-empanelment, the applicant’s senior and junior counsel had ample opportunity throughout the trial – particularly after the evidence was given – to reflect upon the directions that the judge ought ultimately give to the jury about the evidence.
Section 11(b)(ii) of the JDA requires defence counsel – after the close of all evidence and before the closing address of the prosecution – to inform the trial judge whether he or she considers that ‘any defence’ is in issue. And s 12 provides that, after the matters in issue have been identified in accordance with s 11, prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of the matters in issue, and the evidence in the trial relevant to the matters in issue. Notwithstanding that counsel have not sought a direction under s 12, however, the trial judge must ‘give the jury a direction if the trial judge considers that there are substantial and compelling reasons for doing so even though the direction has not been requested’.[20]
[20]Section 16(2) provides:
(2) Before giving a direction under this section, the trial judge must—
(a)inform the prosecution and defence counsel (or, if the accused is unrepresented, the accused) that the trial judge is considering giving the direction; and
(b)invite submissions from the prosecution and defence counsel (or the accused, as the case may be) about the direction and whether there are substantial and compelling reasons for giving the direction.
As we have said, the applicant’s counsel in this Court contended that, despite no such direction having been asked for, the judge should have directed the jury that if they concluded that the alibi evidence – introduced by the prosecution – had been disproved by the prosecution to the criminal standard, then such rejection should not be used against the applicant. Counsel submitted that there were substantial and compelling reasons for giving the direction even though it had not been requested.
We do not agree.
In his charge to the jury, the judge gave a number of directions sufficient to guard against the jury’s misuse of the ‘alibi’ evidence.
First, the judge gave adequate directions about the onus and standard of proof. Thus, he said:[21]
The prosecution must discharge this onus of proof by establishing the guilt of the accused beyond reasonable doubt. These words mean exactly what they say: proof beyond reasonable doubt. There must not be a reasonable doubt in your mind at the end of the day after considering the evidence about the accused being responsible for this crime. If there is, then he is not guilty. On the other hand, if you have no such reasonable doubt about his guilt, then the verdict is guilty. This is the highest standard known to the law. Different to the civil standard, and necessarily so.
The prosecution does not need to prove every fact that they allege to this standard. It is the essential ingredients of the crime of murder that must be proved beyond reasonable doubt. We explain the essential ingredients of a crime by reference to the elements of the crime. In the case of murder, I can deal very briefly with these elements because in this particular case, there is only one that is in issue. …
[21]Emphasis added.
As to the ‘single issue’, the judge instructed the jury as follows:
… The only element that has been placed in issue is the first: whether it was Mr Chaouk that caused the death of Mr Haddara. In other words, whether it was Mr Chaouk who was the shooter.
…
And so it comes to pass that in this case the single issue, an important one, deserving of a trial of a significant length and all of the argument that you have heard and the charge that I am about to give you, but really the question is, is Ali Chaouk the shooter? More precisely, the question is, has the prosecution proved beyond reasonable doubt to your satisfaction that Ali Chaouk is the shooter? That is the issue in the case.
If you are satisfied that the prosecution has proven beyond reasonable doubt that he was the shooter, then your verdict will be guilty. If you are not satisfied that the prosecution has done so, then your verdict must be not guilty.
The judge directed the jury – correctly, in our view – on circumstantial evidence, and then returned to the ‘one issue’ in the trial:
That is the general proposition. Let me bring that back now to the circumstances in this case, remembering that there is one issue for you to determine, and that is whether Mr Chaouk was the shooter.
What this means is that you can convict the accused if but only if you are satisfied beyond reasonable doubt that he was the shooter. If you consider upon the whole of the evidence, both direct and indirect, that there is a reasonable view that someone else may have been the shooter, then the prosecution will not have proved his guilt beyond reasonable doubt and you must find him not guilty.
Let me repeat that in case it is not clear. If you consider upon the whole of the evidence, both direct and indirect, that there is a reasonable view that somebody else may have been the shooter, then the prosecution will not have proved his guilt beyond reasonable doubt and you must find him not guilty.
This is why you have been correctly informed by both counsel, both in submissions directed at this very issue, that if after considering the whole of the evidence there is in your mind a reasonable possibility that Ahmed Hablas was the shooter, then you could not be satisfied beyond reasonable doubt of the guilt of Ali Chaouk.
Later in the charge, the judge again returned to the ‘single issue’:
You already know that there is really only one issue for you to decide in this case and that is whether you are satisfied beyond reasonable doubt that Ali Chaouk was the shooter. Once you determine that issue you will have your verdict. If you think that he was then the verdict will be guilty and if you think that – if you are not satisfied beyond reasonable doubt that he was then the verdict will be not guilty.
The evidence in this case has been entirely directed to that single issue. …
Further, the judge instructed the jury that the arguments of counsel did not bind them, and also made clear that the barristers’ questions were not evidence:
Remember that it is the answers to the witness’s question and not the question that are the evidence. Counsel has indicated that to you more than once and I have also. Bear that in mind. No matter how confidently a question is asked, it is the answer of the witness only that constitutes the evidence.
Importantly, the judge gave thorough directions on assessing the evidence of witnesses. Among other things, the judge told the jury:
It is for you to decide what weight [is] to be attached to any particular piece of evidence. That is, it is for you to decide the extent to which evidence helps you to determine what the facts of the case are. Let me make clear to you that you can accept parts or whole of a witness’s evidence; that is implicit in what I have just said. You can reject part or whole of a witness’s evidence. Let me make clear that you can accept part of a witness's evidence, combine it with part of another witness's evidence, and then when considering the whole of the evidence reach a view about a particular issue in the case. You do not have to accept the whole of a witness’s evidence in order to be able to use a part of a witness’s evidence. The fact that you might reject some part of a witness’s evidence does not mean that you have to reject all of it. All of these questions are a matter for you to consider upon the whole of the evidence that has been led in the case.
In the context of giving directions on prior statements, the judge turned specifically to the evidence of Sabah Hoblos. He instructed the jury as follows:
Now, the second item of evidence I want to refer to in this category is the evidence of Sabah Hoblos, the mother of Rana, the wife of the accused. You will recall that she admitted to giving evidence before the Chief Examiner that Mr Chaouk was outside just before dinner, took a phone call, and then was not seen for the rest of the evening on the night of the shooting. It is submitted that that is a prior inconsistent statement with her present evidence.
I repeat what I said to you in this regard. You can use evidence of that kind in two ways. You can treat that statement, which she admitted to making, as evidence of its truth, that is, that Mr Chaouk did take a phone call and leave for the evening; and also as evidence that might be taken into account when assessing the credibility and reliability of Ms Hoblos’s evidence before you in court.
You have heard the submissions of the prosecution in this regard, that the more reliable evidence was that that she gave to the Office of the Chief Examiner. By contrast, the defence submits that that was a stressful experience over a long period of time in unfamiliar surroundings, and that her more reliable evidence is that which you can see her giving in court, which was contrary to that which she gave to the Chief Examiner.

Moreover, the judge directed the jury on evidence of incriminating conduct on the applicant’s part. Among other things, he said:
It is for you to decide what to make of this evidence, but if you think that Ali Chaouk’s conduct may have engaged criminal activity on his part that is different to the crime of murder with which he is charged, you must exclude this view entirely from consideration. You must be careful not to reason that because Ali Chaouk may have assisted Ahmed Hablas to avoid detection for criminal behaviour, that he, Ali Chaouk, must be guilty of the crime of murder.
Finally, the judge summed up the defence reliance on the alibi evidence in the following way:
Turning to the defence [senior counsel] submitted that Ali Chaouk was not the shooter and he was at home with his wife and mother-in-law at the time when it happened. His wife, Rana, was a truthful witness and was unmoved by the prosecution’s cross-examination and you should accept her evidence in this regard.
We have set the directions given by the judge out in moderate detail to demonstrate that there was no realistic possibility that the jury might have apprehended that the onus of proving that he was not where the prosecutor said he was lay upon the applicant. The judge repeatedly told the jury that the prosecution bore the onus of proving that the applicant was the shooter, and that the prosecution had to prove that single issue beyond reasonable doubt. In these circumstances, the jury could not mistakenly have thought that the applicant bore any onus of establishing that he was at home when the shooting occurred.
Furthermore, we consider that there was no real possibility that the jury might have used their rejection of Rana and Sabah Hoblos’ evidence – their verdict shows that they must have rejected it – as demonstrating a consciousness of guilt on the applicant’s part, or in some other unspecified way against the applicant. It was obvious that the evidence was introduced by the prosecution, in circumstances in which it could not have been inferred that the applicant had put the witnesses up to giving false evidence.
In any event, the judge warned the jury that, if they found the applicant’s claim in his record of interview with police concerning his whereabouts to be a lie – he told police that he spent the entire night of the shooting with his family – they could not infer from that finding that he was the shooter, but could only use it as going to his credit. Following that direction, there is no reason to think that the jury would use a lie told by another person for his benefit (or even at his behest) in the manner now suggested.
In these circumstances, rather than being substantial and compelling reasons for the judge directing the jury that if they concluded that the alibi had been disproved by the prosecution, ‘then such a rejection should not be used against the applicant’, there were substantial and compelling reasons for not giving such a direction. Indeed, we consider that to have given such a direction might well have invited the jury to ponder upon a matter that may not previously have occurred to them. Plainly, to have invited such thinking could only have prejudiced the defence case.
For these reasons, leave to appeal against conviction should be refused.
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[2022] VSCA 151

4 August 2022