Bou-Elias v The Queen (No 1) - [2012] VSCA 61

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0233

KHALIL BOU-ELIAS
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NEAVE and MANDIE JJA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2012
DATE OF JUDGMENT:	4 April 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 61
CASE MAY BE CITED AS:	Bou-elias v R (No 1)
JUDGMENT APPEALED FROM:	DPP v Bou-elias & Ors (Unreported, County Court of Victoria, Judge Cotterell, 15 June 2010)

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CRIMINAL LAW – Appeal against conviction – Evidence of guilty plea by accomplice – No direction to jury as to use of guilty plea by accomplice – Failure by counsel at trial to request direction or take exception – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Glynn	Theo Magazis & Associates
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I have had the advantage of reading Mandie JA’s draft reasons for judgment and agree with his Honour, for the reasons he gives, that the appeal against conviction should be dismissed.

MANDIE JA:

On 12 May 2010, after a 12-day trial in the County Court at Melbourne, the appellant was convicted of aggravated burglary (count 1), affray (count 2), two counts of causing injury recklessly (counts 4 and 6) and two counts of threat to kill (counts 7 and 8). The appellant was granted leave to appeal against conviction on the following ground:

The trial miscarried by reason of:
(a)the jury’s having been told that the accomplice Murat Icbudak had pleaded guilty and been ‘dealt with’ for the very offending the subject of their consideration; and
(b) a failure on the part of the judge to direct the jury in terms sufficient to guard against their impermissible use of Murat Icbudak’s plea and disposition.

The background is as follows. On 30 June 2007, four men entered the Cue Nightclub at 1395 Sydney Road, Fawkner (‘the premises’). They began shouting at, threatening and abusing other patrons. Murat Icbudak (‘Murat’) assaulted a patron, Bekir Kayguzus (‘Bekir’). Murat was restrained by another patron, Tarik Karakas, and pushed down onto a billiard table while the other three men became involved in a fracas with other patrons. One of the men struck Mr Karakas with billiard balls. This man had produced a sawn-off shotgun on entry into the club and made threats to kill Bekir and Ezedin Akkari (‘Ezedin’), another patron. For a period of around 40 seconds, this man terrorised the patrons and the owners of the premises. Following the production of the gun and the assaults, the four men left the premises.

In a statement and record of interview made in August 2007, Murat identified

the appellant as the person with the gun and the appellant was further so identified by a witness, Ezedin, who did not know the appellant but picked his photograph from a photo board prepared for the purposes of identification.

The prosecution case was that the appellant was the…

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.

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Details

Case: [2012] VSCA 61
Decision Date: 4 April 2012

CaseChat Overview and Summary

In the case of Bou-Elias v The Queen (No 1), the appellant, Bou-Elias, sought to appeal his conviction for a serious criminal offence, arguing that the trial judge failed to properly direct the jury regarding the use of evidence from a co-accused who had pleaded guilty. The appeal was heard in the High Court of Australia. The central issue before the court was whether the trial judge's omission to direct the jury on how to consider the evidence from the co-accused, who had entered a guilty plea, constituted a significant error that warranted the overturning of the appellant's conviction. The court had to determine whether such an omission was a substantial procedural error and whether it could be classified as a miscarriage of justice.

The High Court examined the legal principles surrounding the admissibility and use of evidence from an accomplice and the trial judge's duty to instruct the jury accordingly. The court noted that while it is crucial for a trial judge to provide proper directions to the jury on the use of such evidence, the failure to do so does not automatically constitute a miscarriage of justice. The court considered the procedural history, including whether the appellant's counsel at trial requested a direction or took an exception to the omission. It was established that neither action was taken, which had implications for the appellant's ability to argue that the error was a miscarriage of justice.

The High Court concluded that the trial judge's failure to direct the jury did not amount to a miscarriage of justice given the procedural context. The court held that the appellant had not demonstrated that the omission led to a substantial miscarriage of justice, and thus, the appeal was dismissed. The court emphasised the importance of counsel fulfilling their procedural obligations at trial to adequately protect the appellant's rights. As a result, the conviction was upheld, and Bou-Elias's appeal was rejected.

Orders