Bou-Elias v The Queen (No 1)
[2012] VSCA 61
•4 April 2012
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 man with the gun during these events. The issue was one of identity.
The defence case was that the appellant was not the man with the gun and that the prosecution were unable to prove beyond reasonable doubt that he was that man. The defence did not contest the evidence that someone entered the premises that night armed with a firearm – nor did they dispute any of the other facts alleged. The defence position was simply that the appellant was not the person with the gun and was not present.
The relevant course of the trial
The appellant was tried with a number of alleged co-offenders but Murat, having earlier pleaded guilty to one count of intentionally causing injury and one count of aggravated burglary, gave evidence for the prosecution. In his initial evidence at the trial of the appellant, Murat denied that the appellant was present at the premises and also denied seeing any gun. The prosecutor was granted leave to cross-examine Murat pursuant to s 38(1) of the Evidence Act 2008. The prosecutor cross-examined Murat in relation to the statement that Murat had made to the police in August 2007. Murat agreed that he had made the statement and sworn it before the informant. Murat also admitted that he had participated in the record of interview but he said that the matters in the statement and the record of interview were not true (including the statement that the appellant entered the premises with him and had a gun).
References were made during the cross-examination by the prosecutor to the fact that Murat had pleaded guilty in October 2008 in the County Court to a charge relating to the events the subject of the trial. The relevant questions and answers ran as follows:[1]
[1]T 290-292.
You told [the police] that [the appellant] … and [two others] and yourself went into that Club, didn’t you? --- Correct.
Yes. And you told the police that [the appellant] produced the gun, didn’t you? --- Correct.
And threatened people with it, didn’t you? --- Correct.
Yes. And that was true, wasn’t it? --- Sorry?
What you said to the police about it in the tape recorded interview was true, wasn’t it? --- Correct.
And you did go in with these three men, didn’t you? --- Correct.
And you started a fight, didn’t you? --- Correct.
… you punched the first man you went to, didn’t you? --- I don’t recall that.
You don’t recall punching him? --- I can’t remember.
…
[The witness referred to an argument leading into a fight]
…
But you punched him first. Whatever argument you might have had before, you punched him didn’t you? --- I believe I did.
…
… well, you pleaded guilty to assaulting that man, didn’t you? --- Correct.
In the County Court of Melbourne, didn’t you? This building? --- Correct.
In October of 2008, didn’t you? --- Correct.
You came before a judge called Judge Murphy, didn’t you? --- I don’t know the judge’s name.
All right, it was a judge like her Honour, except it was a man? --- Correct.
Dressed in a wig and gown? --- Correct.
And you pleaded guilty to intentionally causing injury to a man called Bekir Kayguzus, didn’t you? --- I pleaded guilty to a charge, yes, I don’t know the person’s name.
… all right, but there was a charge of intentionally causing injury to that man, wasn’t it? --- Correct.
Yes and you had legal advice before you pleaded guilty, didn’t you? --- Correct.
You had a barrister appearing for you before the judge, didn’t you? --- That’s right.
And you told the police in that tape recorded interview that [the appellant]… threatened – produced a gun and threatened the people with it, didn’t you? --- correct.
And that was true, wasn’t it? --- Correct.
A little later in the cross-examination Murat assented to the proposition that he had ‘already admitted that you told the police the truth when you said [the appellant] produced the gun and he threatened people, he threatened to shoot people …’. Later in the cross-examination he was shown a photograph[2] and asked:[3]
Well, that’s where the table – where you came up and punched the bloke first that you pleaded guilty to. Is that right? --- I’ve pleaded guilty to a charge. Yes.
[2]The photograph was produced from film from a CCTV camera in the premises.
[3]T 299.
In cross-examination of Murat by counsel for the appellant at the trial the following exchange occurred:[4]
[4]T 309.
We already know that you were charged in relation to this incident, weren't you, by the police?---Correct.
We know that you were interviewed by the police in relation to it?---Correct.
Indeed, you were sentenced by a County Court judge in relation to this incident, weren't you?---Correct.
Was it the situation that you were in fact sentenced to a term of imprisonment in relation to this incident, weren't you?---Correct.
I think that occurred on 6 October 2008, correct?---Correct.
Can I suggest that what occurred before that judge who was hearing your case, you pleaded guilty, didn't you?---I pleaded guilty because I felt bad.
I'm sorry?---I pleaded guilty.
Yes. We already know that you pleaded guilty to a charge of intentionally cause injury, correct?---Correct.
Later, in the continuing cross-examination by counsel for the appellant, Murat agreed that he was charged with ‘a certain number of offences’ and had served a term of imprisonment for them.
In the course of prosecution counsel’s address to the jury, counsel referred to passages in the transcript where reference was made to Murat having pleaded guilty to intentionally causing injury and to Murat having identified the appellant in his interview as the person who produced a gun and threatened people with it. The prosecutor relied on the evidence of Murat and that of Ezedin to prove that the appellant was the person with the gun. In the course of his address, the prosecutor referred to count 3 as involving the causing of injury to Bekir and said, in relation to Bekir, that he ‘was the first man attacked, you may think’.
In the course of the charge to the jury, her Honour gave an accomplice warning in relation to Murat which is not the subject of criticism on this appeal. Concerning the identification of the appellant, the judge said to the jury:[5]
If after careful examination of the identification evidence and in light of all the circumstances and other evidence given in the case, if you are satisfied then beyond reasonable doubt that the [appellant] was correctly identified, then you can use the evidence in reach[ing] your verdict. So you need to look to what other evidence may support the presence of [the appellant] and assess all the evidence though as to its reliability, because of the warnings I have given you also about [Murat] being an accomplice.
[5]T 727.
In the course of going through the charges, when coming to count 3,[6] the judge said to the jury:[7]
Count 3, intentionally cause injury … is the [count] which relates to the victim [Bekir] who was the very first person struck by Murat when the group entered. Both accused are charged on the basis that they were acting in concert with Murat or aiding and abetting Murat.
[6]Count 3 was a charge of intentionally causing injury to Bekir – the jury acquitted the appellant of this charge but found him guilty of causing such injury to Bekir recklessly (Count 4).
[7]T 822.
Submissions
The appellant submitted that, based on what was said by the Court of Appeal in Fountain and Tootell v R,[8] the judge should have directed the jury not to use Murat’s guilty plea as tending to establish the guilt of the appellant. The jury should have been told that they could use Murat’s guilty plea only as going to his credit. Murat’s evidence was likely to have been very important to the jury’s reasoning, as he was the only identification witness who had previously known the appellant. The jury was told that Murat was ‘the accomplice’ and had pleaded guilty to offences arising from the very matters the subject of the trial. Counsel for the appellant argued that the risk of misuse of Murat’s evidence was further enhanced by the ‘uncertainty’ in his evidence about what he had pleaded guilty to. Such uncertainty, it was submitted, meant that the jury may have used Murat’s guilty plea as tending to establish the appellant’s guilt on every count on the presentment.
[8]Fountain and Tootellv R (2001) 124 A Crim R 100.
On the other hand, the respondent submitted that there was no risk of the jury misusing the evidence of the guilty plea as a step in their reasoning towards the appellant’s guilt, as the guilty plea was not ‘logically probative of the appellant’s guilt of the charges before the jury’. Moreover, a strong accomplice warning was given.
Counsel for the respondent submitted that Murat was not named as a co-accused in the presentment against the appellant and that the jury could only have been aware of his involvement in the offences charged through the evidence led. With regard to that evidence, counsel for the appellant stated that, for the most part, both cross-examination and closing addresses did not identify who the victim in relation to Murat’s guilty plea was. Counsel for the respondent submitted that all the jury knew was that Murat had pleaded guilty to one charge of intentionally causing injury to ‘some person, the first person unnamed’, without knowing whether he was one of the victims in the trial against the appellant.
The respondent further submitted that the judge did not refer to Murat’s guilty plea while relating the evidence to the elements of the offences during his charge to the jury. The respondent submitted that the judge’s only reference to Murat’s guilty plea was in summarising counsel’s addresses and in the context of his accomplice direction, where the judge emphasised that the jury needed to scrutinise Murat’s evidence very carefully because of his involvement in the offending.[9]
[9]See eg T 724, 727.
The respondent also argued that it was not surprising that defence counsel had not asked for a direction in relation to the guilty plea or pleas as this would have risked highlighting in the jury’s mind the evidence about the plea of guilty and suggesting a type of reasoning which, given the nature of the evidence, the jury would not otherwise have considered.
In support of this argument, counsel for the respondent referred the Court to the case of R v Walsh,[10] a conspiracy case where the prosecutor in his closing address had referred to the guilty pleas of the co-conspirators:
During his cross-examination, Mr Walsh accepted that there was indeed a conspiracy to defraud the trust. We say that he could hardly do otherwise in view of the substantial body of evidence which establishes that fact. Nor indeed could he deny the existence of a conspiracy to defraud the trust in light of the fact that both [co-accused] had pleaded guilty to such a conspiracy. Indeed, you heard, not only did they plead guilty to participating in the conspiracy to defraud the trust, but they also pleaded guilty to having conspired with Mr Walsh to do so. . . .
[10](2002) A Crim R 299.
In Walsh, no exception was taken by defence counsel to the judge’s failure to give a direction as to the use of the guilty pleas and on appeal, Phillips and Buchanan JJA, with whom Ormiston JA agreed, held that[11]
In context the passing comment of prosecuting counsel to which exception is now taken could not have mattered, and the failure to take exception below is readily understood. The failure to take exception may not be fatal in such cases per se, but it is fatal when the failure to take exception was because exception was scarcely warranted.
[11](2002) A Crim R 299, 336.
The respondent also submitted that the case of Fountain and Tootell was different from the present case in that, in Fountain and Tootell, the prosecutor had twice invited the jury to use the co-offenders’ pleas of guilty as evidence of the guilt of the applicant. That had not happened here.
Conclusion
In Fountain and Tootell, the complainant was attacked and assaulted by a number of employees of a hotel. Two co-accused pleaded guilty and were called as Crown witnesses at the trial of the two other accused who claimed self-defence. Under cross-examination, the two co-accused gave answers supporting the view that the accused had acted in necessary self-defence in the encounter with the complainant. Accordingly, in re-examination, evidence was led by the Crown prosecutor that both co-accused had pleaded guilty to the very offences upon which the two accused were being tried. In his address to the jury the prosecutor attacked the credibility of the two co-accused and then said:
But the bottom line is, is that all those men gave evidence on oath about and two of them have pleaded guilty in relation to these offences. What, pleaded guilty to nothing, if it was justified? The fact that they pleaded guilty can't be used against these respective accused people because everybody is entitled to an individual trial. You have to assess the evidence against each particular person. But nevertheless the significance is that these two men admitted their guilt in unlawful behaviour and gave evidence of it. So … particularly in relation to [one of the co-accused] … he was quite prepared almost to say, well, yes, the actions were justified but that was totally inconsistent with his behaviour leading up to this trial and his admissions and pleas of guilty in relation to these matters.[12]
[12]Emphasis added.
Charles JA concluded:[13]
… There was, I think, plainly a possibility that the jury would make improper use of the evidence that [the other co-accused] had pleaded guilty to the same offences. The prosecutor's submission to the jury certainly did not make it clear that the pleas of guilty by [the other co-accused] could only be used to rebut any contention by the defence that pressure had been placed by the investigating police officers upon these witnesses to make a statement in support of the prosecution case or to undermine the concessions made by the witnesses under cross-examination in favour of the case of self-defence made by the applicants. On the contrary it seems to me that the prosecutor's words invited the jury to treat the pleas of guilty as evidence tending to establish the guilt of the applicants. On this basis the evidence clearly had the potential to be prejudicial to the applicants who were being alleged to be co-offenders of the persons who had pleaded guilty. In these circumstances the judge should have warned the jury appropriately, as stated in Cowell and Burnett. …
[13]Fountain and Tootellv R (2001) 124 A Crim R 100, [30].
Fountain and Tootell is very different from the present case. In that case, the presence of the accused at the scene was not disputed but it was claimed that they had acted in self-defence. Therefore, the guilty pleas by the co-accused to similar or identical charges in relation to the same incident could have been viewed as very significant and, without adequate directions by the judge, risked being misused by the jury to undermine the accused’s claim of self-defence.
As I have said, the defence did not contest that someone entered the premises that night armed with a gun, or what then occurred as alleged. Rather, the appellant’s case was that he was not present at the premises and was not the man with the gun. Thus, there was no tangible risk that Murat’s plea or pleas of guilty, whereby he accepted his involvement in the events at the night club that evening, would be used by the jury as tending to establish the guilt of the appellant on any of the charges against him. To find the appellant guilty, the jury had to accept the evidence of Murat (and/or Ezedin, the other identification witness) that the appellant was present at the premises and wielded the gun. Murat’s guilty plea could not have assisted the jury and there was no real risk that it would have been used by the jury to establish or as tending to establish the appellant’s guilt. The failure by defence counsel to take any exception, or to request the direction that the appellant now argues should have been given, must be taken as a recognition that this was so. In addition, the vagueness of the evidence concerning Murat’s guilty plea[14] would have made it counter-productive for the appellant to seek a direction drawing attention to it – no doubt another reason for not seeking such a direction. Finally, if such a direction had been sought, there is no reason to think that the judge would not have given it.
[14]Or pleas.
I would therefore reject the appellant’s ground of appeal and dismiss this appeal.
CAVANOUGH AJA:
I agree with Mandie JA.
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