Bou-Elias v The Queen (No 2)
[2012] VSCA 62
•4 April 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0151
| 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 62 | |
CASE MAY BE CITED AS: | Bou-Elias v R (No 2) | |
JUDGMENT APPEALED FROM: | DPP v Bou-Elias & Ors (Unreported, County Court of Victoria, Judge Parsons, 27 April 2010) | |
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CRIMINAL LAW – Appeal against conviction – Whether trial judge failed to properly warn the jury about witness’s motive to lie – Whether trial judge failed to summarise, properly or at all, the evidence led at trial – 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:
After a trial in the County Court at Melbourne, the appellant was convicted of two counts of armed robbery and his co-accused (his brother, Richard Bou-Elias) was convicted of two counts of robbery. The appellant was granted leave to appeal against conviction on two grounds:
1. The trial miscarried by reason of the judge’s failure properly to warn the jury about the evidence by the witness Atik that he decided to report the appellant to police when he was told the appellant had stabbed his brother-in-law.
2. The trial miscarried by reason of the trial judge’s having failed, properly or at all, to summarise the evidence led at trial.
The Crown case at trial[1] was that the appellant and his co-accused knew the victim, Mr Mohammed Atik, who owned a cigarette and tobacco shop in Fawkner. Mr Atik owned an investment property which was leased to Mr Sadalas, who was a friend of the co-accused. The co-accused lived at the property until Mr Sadalas was evicted. When Mr Sadalas was evicted, Mr Atik retained various items of property, including a television set which he later either sold or gave away. The appellant and the co-accused claimed that the television set belonged to them or one of them.
[1]I have derived this summary in part from the reasons of Nettle JA for granting leave to appeal.
On a date in August 2007, the appellant and the co-accused attended at Mr Atik’s shop and made their presence known to Mr Atik. Mr Atik came out to speak to them and in the course of the conversation the appellant said words to Mr Atik to the effect that: ‘I’ll take your eye out if I have to, I don’t care, it was our stuff, not Sadalas’. By that he meant and was understood to mean that the television
set belonged to the appellant or his brother and not to Mr Sadalas. Mr Atik saw that the appellant had a blade of about two centimetres length in his hand – it was clearly visible to him through the appellant’s fingers – and the appellant repeatedly stated in an aggressive manner that he wanted the television set.
While the appellant was making those demands and holding the blade, the co-accused entered the premises and took a bong and then left the premises with it. Ten minutes later the appellant, still armed with the blade, and the co-accused returned to the premises and, despite Mr Atik’s protestations, took another bong and left the premises with that.
Some time passed before Mr Atik reported the matter to police. Initially, he said that he had decided to sort out the matter himself within the community of which he, the appellant and the co-accused were members and that he had received an assurance that the appellant and the co-accused would not enter his shop again. About four months later, however, Mr Atik said that he was told that the appellant had stabbed Mr Atik’s brother-in-law, and Mr Atik said that his concern about that information had motivated him to report the robbery to the police.
The defence case did not dispute that the appellant and the co-accused were present at Mr Atik’s shop on the occasion in question nor that they had taken the bongs. The defence contended that the bongs were taken under a claim of right, that is, with an honest belief that they were entitled to take them as compensation, as it were, for the television set. The appellant also challenged the allegation that he was armed with a blade.
Ground 1
A number of arguments were advanced on the application for leave to appeal in support of ground 1 but leave to appeal was granted only in respect of two of them and these were the arguments relied upon on appeal. The first argument was that the judge was bound to direct the jury that rejection of a suggested motive to lie by Mr Atik (namely the information concerning the appellant having stabbed Mr Atik’s brother-in-law) was not the same thing as accepting that Mr Atik’s version of events was true (a ‘Palmer[2] warning’). The second argument was that it was necessary for the judge to warn the jury that, just because it had been reported to Mr Atik that the appellant had stabbed his brother-in-law, they were not to reason that the appellant was the sort of person who was likely or more likely to commit the sort of offences with which he was charged (a propensity warning).
[2]Palmer v The Queen (1998) 193 CLR 1.
To appreciate these arguments it is necessary to outline the context. Before the jury was empanelled, there was a discussion between counsel and the trial judge. The prosecutor told his Honour that there were only two prosecution witnesses, one being the informant and the other being Mr Atik. The prosecutor said that there was a ‘small pre-trial issue’ and that he believed that the defence might want to ask Mr Atik about the reason why he took some months to report the incident to the police and the issue was as to what his answer would be to that question which the prosecutor paraphrased as that Mr Atik’s brother-in-law was allegedly stabbed by the appellant. The prosecutor said that all counsel were aware of that expected response and didn’t want to lose the jury. Counsel for the appellant explained what it was expected that Mr Atik would say in some more detail and then said:
My concern is this: I would be content if his explanation for his delay is put by him in the response …’my brother-in-law told me that [the appellant] stabbed him in 2005’. As to any other form of explanation that he might give from the witness box – for example, ‘I was there and I saw him stab him’ or something like that …[here the judge interjected].
Counsel for the appellant said that he did not want the prosecutor to lead that from Mr Atik but that he would like to see what Mr Atik had to say about it without being led through it. Counsel for the appellant said that it was not an application by him to exclude that evidence because that would limit him in criticising Mr Atik’s delay (in making any complaint to the police).
Further discussion ensued but it became apparent that there was nothing upon which the judge was being asked to rule.
In due course, Mr Atik gave his evidence. When he was cross-examined by counsel for the appellant, he agreed that he had not complained to the police until about 4 months after the incident. Counsel for the appellant put to Mr Atik that something had changed that had led him to go to the police and the following exchange then occurred:
It’s the situation, isn’t it that what you say changed your mind is that your brother-in-law told you that my client had stabbed him? -- that’s correct.
That changed your position about reporting this matter. Is that right? -- that’s right, yeah.
What you say is that your brother-in-law told you that my client had stabbed him in 2005. – yes.
Counsel for the accused then put a considerable number of questions to Mr Atik challenging the credibility of his evidence on the basis, in effect, that it was improbable that his brother-in-law, whom he saw on a regular basis from 2005 when he was stabbed and to 2007 when the incident occurred, would not have given him the information about who stabbed him and that he would not have asked his brother-in-law to identify the stabber long before 2007. Finally, counsel for the appellant asked and was answered as follows:
What I suggest you’re doing is you take yourself down to the police station four months later and you up the ante. You want to get this bloke in as much trouble as you possibly can -- No, not at all. What it is is it’s just a situation where you start to think, well, if that’s what’s going on and they keep doing this, they’re going to come back and do it again.
But that’s based on this jury believing … that for two years you never know who your brother-in-law says stabbed him -- well no, it was up in the air.
And then all of a sudden you do? - - It’s up in the air. I didn’t discuss it with him.
…
I suggest that you took yourself down to the police station and thought ‘look, I’ll tell them I caught a bit of a glimpse of some kind of blade in his hand? - - No, I saw a blade.
‘That will up the ante to a serious offence’? - - No, I saw a blade.
The learned prosecutor, in his closing address to the jury dealt with this aspect as follows:
[Mr Atik] did not report to police for three to four months, but he did contact somebody else. He gave evidence that what propelled him to report the incident was the fact that it was confirmed to him that his brother-in-law had been stabbed by [the appellant]. Now, again the defence will likely say, ‘Well, the reason why Mr Atik has left and he's reported it to police so late is it's just some sort of revenge. That's how Mr Atik's going to get revenge against [the appellant] or both brothers.’ But you can also understand that Mr Atik was in fear on the day in question and then when he discovers that his brother-in-law's been stabbed by [the appellant] that he does something about it. His fear is increased even further and so then he does go to the police.
Now, ultimately all of this is going to come down to whether you believe Mr Atik or not and whether you believe his evidence. You have to be satisfied beyond reasonable doubt in regards to Mr Atik's evidence and beyond reasonable doubt just means what it says.[3]
[3]Emphasis added.
Counsel for the appellant in his address to the jury argued that Mr Atik’s delay in making any complaint to the police was not how somebody would be expected to act if they had been the victim of a threat by a man with a blade, an armed robbery by somebody they knew and that we would expect them to go to the police station straight away. Counsel then referred to Mr Atik’s explanation for the delay and quoted his cross-examination about whether and why Mr Atik’s brother-in-law had not told him earlier that it was the appellant who had stabbed him.
In his address to the jury, counsel for the appellant did not so much suggest that the motive was revenge for what happened to his brother-in-law but that the question should be approached as follows:
It's a matter for you whether you accept what he says about that. It's a matter for you whether you think that's a likely - it's got a ring of truth about it or not. His brother in law was stabbed, never asked him who did it for the best part of two years. It's a situation where you can use your collective common sense as a jury of 12. Does that sound right? In my submission, it can't be right that he never made the enquiry of his brother in law. If you don't accept that explanation as being realistic, well, what's the delay of the four months all about? In my submission, it's not normal, it's not rational behaviour.
So with respect, you might need to ask yourself why doesn't he act like we would expect someone to act if they've been the victim of what he says took place on this day? The answer might be there was no threat and there was no weapon. What I've tried to do so far is to suggest to you, of course at the end of the day it must be up to you, you're the jury, but to suggest to you that the body of evidence in this trial doesn't fit with an armed robbery. Trying to hide a weapon, doing it out in the street, taking two glass bongs instead of cigarettes and cash, no report to the police.
Counsel both for the appellant and for the co-accused concentrated in their address to the jury upon the claim of right defence.
In his charge, the judge made a number of references to Mr Atik’s explanation for his delay, involving his brother-in-law, without directly referring to the alleged stabbing. His Honour described the challenge by counsel for the appellant to Mr Atik as being along the lines ‘no, this is all made up and this was just to gild the lily to get a bit of traction for allegations that involved the brother-in-law’.
The judge had begun charging the jury on 10 March 2010 but had not finished. The following morning before the charge resumed, the jury put two questions to the judge and the second question was:
Is the stabbing of the brother-in-law relevant? It keeps being brought up and not defended or denied by the defence.
The judge discussed this question with counsel:
HIS HONOUR: … Question 2 is slightly more problematic. ‘Is the stabbing of the brother-in-law relevant?’ The second part of it is, ‘It keeps being brought up and not defended or denied by the defence.’ So there are two parts to that.
With respect to the second part, I think the fact that it's brought up and defended or not denied by the defence - I'll remind the jury that that matter is not before them. To entertain any thoughts about whether or not it actually happened and who did it, would be to speculate and they're not to do that. He's not on trial here for stabbing anybody.
As I understand the relevance of it, the relevance of what was said was only with regard to the complaint. That is, it was after the brother-in-law - who raised it first, the brother-in-law or Mr Atik.
[COUNSEL FOR THE APPELLANT]: Sorry in what sense Your Honour?
HIS HONOUR: Was it the brother-in-law who told Mr Atik or Mr Atik told the brother-in-law.
[COUNSEL FOR THE APPELLANT]: I don't think we've got evidence on that.
HIS HONOUR: Very well. I'll say it was after the brother-in-law [and] Mr Atik discussed the matter that Mr Atik decided to report the robbery and that was the sole reason it was admitted into evidence as being the reason for him to complain to the police. Any problems with that?
[COUNSEL FOR THE APPELLANT]: No, Your Honour.
[COUNSEL FOR THE CO-ACCUSED]: No, Your Honour.
HIS HONOUR: [Mr Prosecutor]?
[PROSECUTOR]: As the court pleases.
HIS HONOUR: All right. The jury, thank you.
The judge then answered the jury’s question:
Now the second thing with respect to the question which asked about the stabbing of the brother-in-law, is it relevant? Now of course that matter is simply not before you and you must not therefore entertain any thoughts about whether or not it actually happened and if it did, who did it because that would be to speculate and of course you are not to speculate. Remember you are to draw inferences, remember the rain example - not the rain, the rain was one of them, but remember the aeroplane example.
You can infer that I flew to Sydney, but you cannot say I flew with Qantas because that would be speculation, guesswork, so of course you are not to guess at who stabbed who, when they stabbed them if they stabbed them. That is all guesswork and therefore put that to one side. It is simply not a relevant matter for you to consider, whether it happened and if it did who did it.
The reason that evidence was before you was simply because of course as you understand that was the reason why there was a discussion between Mr Atik and his brother-in-law about that and that was the reason that therefore Mr Atik went to the police and made the complaint, so that is the reason why that evidence is before you because that is the basis on which Mr Atik went to make the complaint to the police that his brother-in-law said that and as a consequence of that - we do not know if it is true, we do not know if it is not true, we do not know who did it, we do not have any evidence of that, so we cannot speculate about those things, but it is the consequence of the fact that his brother-in-law told Mr Atik that Mr Atik then told the police and that is why that evidence was before you and only for that reason, so if you only use it in that way then you will not be speculating and you will not be guessing, you will only be drawing inferences and acting on evidence in the way that I have directed you. That hopefully answers your questions.
The appellant submitted that Mr Atik’s evidence about what he was told by his brother-in-law and the way in which it was relied upon ought to have sounded warning bells to counsel and judge alike, especially having regard to the question asked by the jury. The directions in fact given by the judge in answer to the jury’s question fell short of what the law required and the circumstances necessitated.
The respondent submitted that a Palmer warning was not required in the circumstances of the case and that, in any event, after discussion between defence counsel and the judge, such a warning had not been requested, defence counsel had agreed with what the judge said that he intended to tell the jury and no exception was taken to what he told them. There was no doubt, the respondent submitted, that had the judge been asked by counsel for the appellant to do so, such a warning would have been given by his Honour. In relation to the propensity warning, the respondent said that the judge had told the jury that whether the appellant had stabbed Mr Atik’s brother-in-law was irrelevant and not to speculate about it and therefore, it would have been illogical and contrary to the appellant’s interests to give a propensity warning to the effect that the jury should not reason from the stabbing of the brother-in-law to the guilt of the appellant on the counts before them. The respondent also relied upon the failure to seek that direction or to take any exception in that regard.
Dealing with the argument as to the propensity warning first, I agree with the respondent’s submissions. I accept that the jury’s question was a clear indication that there was a danger that the jury might regard the reported stabbing of the brother-in-law by the appellant as relevant to the question whether he had committed the offences charged and in particular whether he was wielding a ‘blade’. It seems very possible that the unfortunate language used by the prosecutor when referring to the reported stabbing may have caused the jury to ask this question.
However, the direction in strong terms by the judge that the question whether the appellant had stabbed the brother-in-law was irrelevant and that the jury should not speculate about it was sufficient in my opinion to eliminate any danger of propensity reasoning. It would indeed have been counter-productive for the judge to go on to say that the jury should not reason from the stabbing of the brother-in-law to the appellant’s guilt of the offences charged after telling the jury that the truth of the stabbing allegation was irrelevant. It was made clear by counsel for the appellant from the beginning of the trial that any allegation that the appellant had in fact stabbed Mr Atik’s brother-in-law would be prejudicial. So it cannot be said that this aspect was overlooked. It must have been a deliberate forensic decision by defence counsel, and an understandable one in the circumstances, not to ask for a propensity warning.
Turning to the Palmer warning, it is of some importance to note that defence counsel were seeking to use Mr Atik’s explanation for his delay in reporting the incident in two inconsistent ways. One way was to suggest that it was incredible to think that his brother-in-law had not told him much earlier and that his conduct in making the allegations was in some way inexplicable or irrational. The other way was to suggest that, having been told of the alleged stabbing, he wished to seek revenge and ‘gild the lily’ (ie lie). Thus, the defence was not necessarily that Mr Atik had a motive to lie and a direction concentrating upon that matter may not have been helpful to the defence case. But, more importantly, this was not a case where the witness was saying that he did not have a motive to lie and the defence were saying that he did, because, if Mr Atik’s own evidence about the reason for his delay was accepted, he clearly did have a motive to lie. The issue for the jury was, as they would have understood both from counsels’ addresses and the judge’s charge, whether they were satisfied beyond a reasonable doubt as to the truth of Mr Atik’s account of the incident. In my opinion, therefore, this was not a case where it was appropriate to direct the jury that even if they found that Mr Atik did not have a motive to lie, that did not mean that they should necessarily conclude that his evidence was true.
In any event, again, the whole topic was clearly drawn to defence counsel’s attention by the jury’s question, it was discussed with the judge and no such direction was sought.
Accordingly, I would reject ground 1.
Ground 2
The appellant submitted that the learned trial judge had failed to relate his directions to the facts and to summarise so much of the evidence as was relevant to the issues in the case. The appellant submitted that the judge had failed entirely to summarise the evidence. I would interpolate that in the context of this trial that meant that the judge had failed to summarise Mr Atik’s evidence because the informant’s evidence was of little significance and there was no other witness called by either side. The appellant submitted that this represented a departure from a fundamental requirement of the law.[4]
[4]Citing R v AJS (2005) 12 VR 563, 577; R v Dao [2005] VSCA 196, [22].
The respondent submitted that in a short trial with only one material witness the judge had adequately covered the evidence in his charge.
At the commencement of his charge,[5] the judge told the jury that the charge would be in four sections – first, the relevant principles of law, secondly, the elements of the charge or issues that the jury had to decide, thirdly, a summary of the submissions of counsel and finally the verdicts the jury could return. The judge then proceeded to give standard directions including as to the role of the jury in relation to deciding the facts solely on the evidence, as to the drawing of inferences, as to the onus and standard of proof beyond reasonable doubt and as to the separate consideration of each charge against each accused. He also directed the jury as to the relevance of evidence that Mr Atik had prior convictions.
[5]T 187.
The judge next told the jury[6] that he would take them to the issues and summarise the evidence that had been given in relation to those issues. His Honour told the jury of the elements of the charge of robbery. In the course of doing so, he said that it was not in dispute that the co-accused had taken the bongs that belonged to Mr Atik with the intention to keep them. He then explained the defence case that the two accused were not acting dishonestly when they appropriated the bongs because they believed that they had a legal right to take the property. He referred to the addresses of defence counsel in which they had in substance described the defence as being that the two accused had taken the bongs because they were ‘owed to them’ because Mr Atik had taken their television set. The judge, while referring to this issue, said that he would be summarising the evidence ‘fairly shortly’ (ie soon).[7]
[6]T 197.
[7]T 202.
The judge directed the jury that the prosecution had to prove that the accused were acting dishonestly and therefore had to prove beyond reasonable doubt that the accused did not believe that they had a legal right to the bongs. The judge stressed that it did not matter whether the belief was correct or incorrect - the jury had to be satisfied that the accused did not hold such a belief. The judge explained the foregoing in relation to the charges of robbery against the co-accused and also referred to the question whether Mr Atik had been put in fear that force was going to be used on him. The judge then explained and applied these principles to the position of the appellant and added directions in relation to the ‘blade’ in explaining the offence of armed robbery. The judge repeated his directions about the claim of right defence. Then he referred to the disputed evidence of Mr Atik about the ‘blade’ and the challenge to Mr Atik’s evidence based on his delay in making any complaint and his explanation for that delay. The judge said that the prosecution had to prove that the appellant had the blade with him for the purpose of the robbery and intended to use it to put Mr Atik in fear.
After discussing the charges and some alternative offences, the judge said that the jury could take a break and he would get them back in about quarter of an hour, read another couple of things to them and ‘then I will start to summarise a bit of the evidence’.[8] This was at about 3.28pm on 10 March 2010, the judge having commenced his charge at the beginning of proceedings that morning. In fact, the jury, for whatever reason, did not return. At the recommencement of the hearing on the next day, there was some discussion between the judge and counsel including discussion as to the two questions that the jury had asked (to which I have already referred). At 10.52am, the jury returned to the court and the judge dealt with their questions and then resumed his charge[9] by saying ‘now what remained for me to do was to summarise counsel’s arguments and I will do that just now. And then I have got a couple of things to tell you about your verdicts and then you will be retiring.’ The judge then proceeded to summarise counsels’ addresses and give some further legal directions.
[8]T 220.
[9]T 234.
So it is clear that the judge, although stating his intention to do so on a number of occasions, never did summarise the evidence as a distinct exercise. However, in the course of summarising the prosecutor’s address, the judge referred inter alia to the relevant aspects of Mr Atik’s evidence and related it to the charges of robbery and armed robbery. He briefly described Mr Atik’s evidence about what happened during the incident in question. This was in addition to what the judge had already said about Mr Atik’s evidence when identifying the disputed elements of the offences charged. His Honour then referred to the addresses of defence counsel and inter alia mentioned those aspects of the evidence upon which defence counsel had relied.
With only one significant witness giving evidence in a short trial, the evidence of Mr Atik would have been very present to the mind of the jury and I do not think that the judge, in the end, had failed to mention any significantly relevant aspect of Mr Atik’s evidence or to relate it to the disputed elements of the offences charged. In the circumstances of this particular trial, I do not consider that the judge’s references to the evidence and relating of the evidence to the charges was fundamentally inadequate or productive of any material injustice. Indeed, although he did not separately and formally, as it were, summarise the evidence as he had indicated that he intended to do, it is significant that counsel for the appellant did not identify any relevant fact that the judge had not adverted to in the course of his charge. I do not think that the judge failed to provide the jurors with sufficient knowledge and understanding of the relevant evidence and the issues to which that evidence related
in order that they might discharge their duty to decide the case according to the evidence.[10]
[10]R v Farquharson (2009) 26 VR 410, 435 [103].
I would therefore reject ground 2.
For the foregoing reasons, I would dismiss the appeal.
CAVANOUGH AJA:
I agree with Mandie JA.
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