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…
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- Case
- [2012] VSCA 61
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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