El-Azar v R and Shalala v R
[2011] VSCA 18
•11 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| ELIA GHASSAN EL-AZAR | S APCR 2010 0310 |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
| S APCR 2010 0316 | |
| ALAN SHALALA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, BUCHANAN and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 January 2011 |
| DATE OF JUDGMENT | 11 February 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 18 |
| JUDGMENT APPEALED FROM | R v El-Azar and R v Shalala (Unreported, County Court of Victoria, Judge Duggan, 23 August 2010) |
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CRIMINAL LAW – False imprisonment – Verdict not unsafe or unsatisfactory – Trial judge adequately conveyed the defence case to the jury – DNA evidence – Jury entitled to act on DNA evidence notwithstanding possibility of contamination – Jury required to consider all the evidence.
CRIMINAL LAW – Sentence – Failing to fix a non-parole period not an error.
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Appearances: | Counsel | Solicitors |
| For the Applicant El-Azar | Mr J E McLoughlin | Victoria Legal Aid |
| For the Applicant Shalala | Mr G J Traczyk | Platinum Lawyers, Sydney |
| For the Respondent | Mr P N Rose SC | Mr Craig Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons of Buchanan JA. I too would refuse each application for leave to appeal, for the reasons which his Honour gives.
BUCHANAN JA:
After a trial in the County Court, the applicants were found guilty on a count of false imprisonment and were acquitted on counts of kidnapping and making a threat to kill. Each applicant was sentenced to be imprisoned for a term of 15 months.
The applicants had previously been found guilty of a number of offences arising from the same events after a trial in the County Court. Those convictions were quashed on appeal.
The applicants seek leave to appeal against their convictions and El‑Azar seeks leave to appeal against his sentence.
The principal Crown witness was one David Golombek. He said that in January 2003 he visited a flat in South Yarra where Richard Rizki lived. The applicants, but not Rizki, were present at the flat. The applicants quizzed Golombek at length as to his knowledge of Rizki’s whereabouts. Shalala informed Golombek that Rizki owed him money. Upon leaving the flat, Golombek was questioned further about the whereabouts of Rizki by the applicants. He said that the applicants were becoming increasingly anxious.
Golombek drove from Rizki’s flat to his house in Toorak, followed by the applicants. As he parked his car, Golombek was again approached by the applicants, who continued to attempt to enlist his assistance in locating Rizki. He was offered a reward. He exchanged telephone numbers with Shalala.
The following morning, one of the applicants telephoned Golombek and
arranged to meet him in Prahran. Golombek accompanied the applicants as they drove around Prahran in an attempt to locate Rizki. After some 20 minutes, Golombek told the applicants that he was unable to help them further. Golombek said that one Geoffrey Cook might be able to help the applicants locate Rizki. The applicants drove Golombek to the Doncaster Shopping Centre, where they were introduced to Cook. The applicants attempted to induce Cook to help them locate Rizki by offering him cash and drugs. After the meeting, the applicants drove Golombek home. Throughout the afternoon, Golombek said that he received numerous telephone calls from Shalala, who was becoming increasingly frustrated at not being able to find Rizki.
Two days later, Golombek received a telephone call from Rizki. Golombek drove to Rizki’s flat. He saw that he was followed by the applicants. Golombek left his car and proceeded towards Rizki’s flat, but was caught and restrained by Shalala.
Golombek was forced by Shalala into a motor car driven by El-Azar. Golombek said that Shalala placed a beanie over his head and held down his head in the back seat, out of view. He was driven to El-Azar’s house in Lower Templestowe.
Golombek was taken into the garage at the house and placed on a swivel chair. His arms and legs were tied with rope. He said that he felt that the rope was ‘a plastic type rope’. After half an hour of questioning, Golombek was taken into the house where he was again questioned about Rizki.
Later that evening, Golombek was taken to a nearby house and held inside the kitchen. He was continually threatened and assaulted by the applicants. Golombek said he was held at the house for some two hours before being taken back to the first house. He remained tied up on the floor of the living room for the remainder of the night. He said that during the time he was detained, he was constantly abused and assaulted by the applicants, who made threats against his life and that of his grandmother.
The following day, the applicants drove Golombek back to Prahran and released him. Golombek walked to Rizki’s flat, where he was found by police.
A medical practitioner said that she examined Golombek that evening and found fresh bruising and grazing wounds to several parts of his body including his ankles, wrists and cheekbones. The doctor described the injuries to Golombek’s wrists in the following terms:
There was also red bruise superficial grazing almost encircling the right wrist except for the middle front of the wrist. There was similar bruising on the left wrist, red bruise superficial grazing almost encircling the left wrist with grazing again just at the middle of the front of the wrist.
The doctor said that the wrist injuries were ‘consistent with an encircling of the wrist by a rope.’
A policeman gave evidence that he searched El-Azar’s house in Templestowe and he, or a colleague also engaged in the search, found a length of green nylon rope in the garage. A sample from the rope and saliva taken from Golombek were subjected to DNA analysis and found to match.
Neither applicant led any evidence.
The first ground of the application by El-Azar is:
1. The conviction is unsafe in the light of:
(a) The unreliability of the witness Golombek;
(b)The possibility of contamination of the rope on which DNA matching that of Golombek was found;
(c)The record of telephone calls were inconsistent with Golombek being a prisoner;
(d)The acquittals on the counts of kidnapping and threatening to kill.
Counsel for the applicants pointed to a number of aspects of Golombek’s evidence, which he said were unsatisfactory, principally stemming from inconsistencies between his evidence and statements he made to the police and his evidence in the earlier trial.
Golombek conceded that he had changed his story about where Rizki had accused him of stealing drugs and said that the Court could accept whichever version it liked. He conceded on previous occasions that Rizki and his brothers could have been his kidnappers. He gave inconsistent accounts of persons who he said witnessed his kidnapping and had failed to tell police about an identifiable person said by him in court to have witnessed the kidnapping. He gave conflicting accounts of where he had been held, in a basement, a shed or a garage and appeared to change his account to fit what he had been told by the police. He changed his account of how he was tied up. Golombek retracted the claim that he had been tied to a chair. He claimed to have been taken to the bathroom to inject insulin, but could not describe the room. On a previous occasion he said he had never heard El-Azar’s voice while he was held prisoner. Golombek claimed to have seen the material which bound his legs and said that it was flesh-coloured. In evidence Golombek said that he did not shake hands with his captors after being released, although on a previous occasion he had said that he had done so. He conceded that he had changed his description of the car in which he had been kidnapped from a four door vehicle to a two door vehicle.
As to the telephone calls, there was a record of a call between Cook’s phone and Golombek’s phone during the evening of 12 January 2003, when Golombek claimed he was a prisoner of the applicants. With respect to calls made from Golombek’s home on 14 January 2003, he initially stated that his grandmother, the only other person on the premises, would not have been ringing Rizki. When confronted with the call records, Golombek stated it would have been his grandmother, who was ‘very crafty’. Later he said that she had been up all night, walking the streets, trying to find him.
Although counsel for El-Azar conceded that it was open to the jury to regard the DNA evidence and the evidence of injuries to Golombek as putting the count of unlawful imprisonment in a different category from the other counts, he said that the case had been put by all parties on an all or nothing basis. Counsel submitted that a proper approach would have led the jury to consider whether the supporting evidence allowed it to conclude that Golombek was believable, and if it came to that conclusion, it should have convicted the applicants on all counts.
The trial judge was at pains to point out to the jury the difficulties with Golombek’s evidence. On one occasion in the course of his charge he said:
[T]he conclusion that I expressed, that there were many matters that emerged in the cross-examination, both the prior inconsistent statements and other matters to which counsel referred could cause you to have a serious reservation about Golombek’s evidence to the extent that if the Crown case relied upon his evidence and his evidence alone, I would be making I think a strong comment to you that you should have reservations about returning a verdict adverse to the accused.
Warnings in like terms were repeated several times by the trial judge.
Golombek was the principal Crown witness, but his evidence did not stand alone. It was supported by the DNA evidence matching samples from Golombek and the rope found in El-Azar’s house and the evidence of Golombek’s injuries. The jury heard and saw Golombek giving evidence. They were entitled to accept or reject his evidence, notwithstanding its shortcomings, in combination with the other evidence.
The jury were required to consider the evidence of Golombek together with the other evidence in order to determine whether each of the counts had been proven beyond reasonable doubt. The jury were not to determine whether they were satisfied as to the truth of Golombek’s evidence that he had been falsely imprisoned separately from the question whether the DNA evidence established that the green rope had been used to imprison Golombek.
This Court must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicants were guilty.[1] Viewing the Crown case overall, in my opinion, it cannot be said that the jury must, rather than might, have entertained a reasonable doubt as to the applicant’s guilt.[2]
[1]R v Klamo (2008) 18 VR 644, [38] (Maxwell P).
[2]Libke v R (2007) 230 CLR 559, [13] (Hayne J).
The counts of kidnapping and making a threat to kill depended entirely upon Golombek’s evidence. As El-Azar accepts, it was open to the jury to treat the DNA evidence and the evidence of injuries as supporting the count of false imprisonment. The trial judge told the jury to consider each count separately. The jury evidently did so, and were entitled to arrive at a conclusion on the count of false imprisonment notwithstanding the trial judge’s comments as to the credibility of Golombek and the arguments of counsel.
Ground 2 of the application by El-Azar for leave to appeal against conviction is as follows:
2.The applicant was deprived of a fair trial by reason of errors in the way the learned trial judge directed the jury in the charge, in particular:
(a)the failure to set out in detail the contradictions and implausibilities in the accounts given by Golombek established in cross-examination;
(b)the failure to detail properly the defence case in the delivery of a charge which was unbalanced and calculated to shore up the prosecution case;
(c)the direction given about the drawing of inferences in the context of the circumstantial evidence supporting the Crown case;
(d)the direction that Golombek’s knowledge that there was a crucifix hanging from the rear vision mirror of the car driven by the applicants was capable of supporting the Crown case.
Counsel for El-Azar submitted that by omitting to catalogue the inconsistencies in the accounts given by Golombek and the respects in which his evidence was implausible or at odds with objective facts, the trial judge obscured or played down the central question for the jury’s consideration, that is, was Golombek to be believed. Counsel said that by inviting the jury to concentrate on the supporting evidence, his Honour effectively presented an apologia for the Crown case. Further, counsel said that the trial judge should have explored in detail in the charge the phone records, a cloud over the rectitude of a policeman concerned in the case, the absence of the DNA of any other person on the rope and the absence of blood on the rope.
In my opinion, once the trial judge made clear to the jury that in his view they could not be satisfied of the applicant’s guilt beyond reasonable doubt on the basis of Golombek’s evidence alone, it was unnecessary to list each criticism that could be made of Golombek’s evidence. The critical point was that the evidence was unsatisfactory and, in the opinion of the trial judge, by itself could not found a finding of guilt. That was clearly conveyed to the jury. The existence and strength of supporting evidence thus became an important issue, to which the jury’s attention was appropriately directed. The trial judge did not recount all the arguments advanced by counsel for the applicants attacking the Crown case. He did, however, repeat the central points made by defence counsel. I do not consider that there was any danger that the jury did not understand and appreciate the thrust of the defence case.
The trial judge’s direction as to Golombek’s knowledge of a crucifix in the car was as follows:
Mr Golombek said in respect of the car, ‘did you notice anything specifically about that car they had? Any particular aspect of it?’ ‘Just a crucifix hanging from the rear vision mirror’, but of course it is common ground that he was in the car on the day previously in question anyway so the significance of that I suppose is very much reduced by the fact that he had been in the car on a previous occasion.
The evidence did not assist the Crown case, for there was apparently no dispute that Golombek had voluntarily ridden in the car on the day before he was said to have been abducted. The trial judge made this very point, and accordingly it is to be presumed that the jury saw the true significance of the evidence.
The grounds of the application by Shalala for leave to appeal against conviction are as follows:
1.The failure by the prosecution to call all witnesses relevant to the movements and therefore the integrity of the ‘green rope’ deprived the applicant of the opportunity to properly challenge the finding of the victims DNA on the rope, causing the trial to miscarry.
2.The learned trial judge erred in directing the jury that they could use the finding of the victim’s DNA on the ‘green rope’ as supporting evidence of the victim’s account of being falsely imprisoned.
3.It was not open to a reasonable jury properly directed to use the findings of the victim’s DNA on the ‘green rope’ in a way adverse to the applicant.
4.The failure by the prosecution to exclude hypotheses consistent with innocence on the issue of the victim’s DNA on the ‘green rope’ led to a miscarriage of justice.
Detective Senior Constable Lawrence said that either he or another policeman, Lalor, found the rope. Lalor was not called as a witness. The rope was taken to Prahran police station by Lawrence in a re-sealable plastic bag. The bag was placed in the Prahran property office. Lawrence gave evidence that he placed the rope in a bag and, with Detective Fuller, took the bag to the forensic science laboratory at Macleod. Fuller was in the Australian Federal Police Force and was serving overseas at the time of the trial. Lawrence said that the rope was sealed in a clear plastic bag and it was not necessary to take the rope out of the bag in order to identify it or to compile an exhibit list. Counsel for El-Azar speculated that the rope may have been taken out of the bag and placed in another plastic bag. The rope and other items, including articles of Golombek’s clothing, were stored in the same room. The articles of clothing were in open paper bags.
A receipt was given by one Butera to Fuller at the Macleod laboratory. Butera was not called as a witness. The person who took a DNA sample from the rope at the laboratory was not called as a witness. Fowler, the senior forensic scientist at the laboratory, conceded that ‘it would be more ideal’ if items found as a consequence of executing the search warrant were packaged in sealed bags to completely eliminate the possibility of the transfer of DNA.
At trial, counsel for the applicants accepted that Golombek’s DNA was on the rope, but they maintained that the rope may have been contaminated by Golombek’s DNA from items of his clothing.
Counsel for the applicants submitted to the trial judge that he should direct the jury that the DNA evidence ‘cannot be utilised by them in any permissible way’. He said that contamination was a hypothesis or possibility that ‘cannot be excluded in this case’. It would appear that counsel was advancing the argument that the DNA evidence was critical in that it was the principal evidence corroborating Golombek’s evidence, and as the DNA evidence could not by itself establish the applicant’s guilt beyond reasonable doubt, ‘the jury should disregard that evidence’.
The trial judge ruled that it was open to the jury to come to the conclusion that they were satisfied that the DNA was not contaminated as ‘it would be open to the jury to take the view that the rope in particular was sufficiently isolated to remove the possibility of contamination’.
No complaint was made to the trial judge of the failure of the Crown to call as witnesses all those persons who were able to give evidence of the handling of the rope from the moment it was found until it was analysed. It was not put that the absence of witnesses rendered the trial unfair.
Lawrence was able to give evidence of the circumstances in which the rope was found and taken from the garage of El-Azar’s house to a forensic laboratory. In my view, the jury could conclude that the sample taken from the rope was not contaminated by DNA from other material emanating from Golombek without the Crown calling as a witness every other person who might have been able to also describe how the rope was handled. There was no reason to suppose that the rope did come into contact with any items of Golombek’s clothing and it was fanciful to suppose that DNA might have floated in the air from those items to land on the rope. Fowler’s opinion that it would be ideal if sealed bags were used was a counsel of perfection. His evidence did not entail that there was a real risk of contamination in the present case.
I do not accept the contention that unless the jury was satisfied beyond reasonable doubt that there was no contamination of the sample taken from the rope, they were required to disregard the DNA evidence altogether. The jury were obliged to consider all the evidence. They were entitled to conclude that Golombek’s evidence in combination with the DNA evidence and the evidence of Golombek’s injuries established the applicant’s guilt beyond reasonable doubt.
In Chamberlain v R (No 2),[3] Gibbs CJ, Mason and Brennan JJ held that the jury were required to consider the evidence as a whole, not in a piecemeal fashion, and they rejected an argument that in a case where the evidence is circumstantial, each fact on which an inference is sought to be based must itself be proved beyond reasonable doubt. Gibbs CJ and Mason J said:
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’; they should consider the accumulation of the evidence …
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it.[4]
[3](1984) 153 CLR 521.
[4]Footnote omitted.
The present case was not one in which the applicants’ guilt depended entirely upon circumstantial evidence. Golombek’s evidence constituted direct testimony as to his imprisonment. The jury were entitled to accept that evidence, notwithstanding the warnings given by the trial judge, in combination with the DNA evidence and the evidence of Golombek’s injuries.
For the foregoing reasons, I would dismiss the applications for leave to appeal against conviction.
The grounds of the application by El-Azar for leave to appeal against sentence are as follows:
1The sentence imposed was manifestly excessive in the light of the history of the proceeding.
2The learned sentencing judge erred in failing to fix a non-parole period.
3The learned sentencing judge erred in sentencing on the basis that Golombek had been imprisoned for a significant period, at least overnight, and had been-hog tied for a period of that time.
The applicant is 34 years old. He had 19 previous convictions from 11 court appearances. The sentencing judge said that those offences were ‘of only marginal relevance’. The applicant had committed further offences and at the time he was sentenced he was serving a sentence of seven months’ imprisonment imposed in a Magistrates’ Court.
The applicant’s father died when the applicant was 13 years old. The applicant completed year 12 at school and then worked in his family’s mixed business in Whittlesea. Thereafter the applicant operated a number of businesses, including a hair salon and beauty business.
A report by a psychologist was tendered in the course of the plea. The applicant told the psychologist that he had used amphetamine, cannabis and cocaine. The psychologist said that ‘this man’s presentation is bizarre and does include delusional thinking’ and said that ‘illicit drug use has also played a significant role in his mental state’.
Pursuant to the first ground of the application, counsel for the applicant submitted that a sentence should have been imposed which did not require the applicant to serve any further time in custody, having regard to the fact that the applicant had been arrested in 2003, tried and imprisoned in 2007, his conviction was quashed in 2007, he was retried abortively in 2009 and finally convicted on one count. When he was sentenced, the applicant had been imprisoned for 318 days.
In my opinion, it cannot be said that the exercise of the sentencing judge’s discretion miscarried because he did not determine that 318 days previous detention was sufficient. His Honour took into account the history of court proceedings over many years, the circumstances of the offence and the applicant’s antecedents. The sentence was not outside the range of a sound sentencing discretion.
In my opinion, it does not follow from the trial judge’s reservations as to the credibility of Golombek that he was bound to conclude that Golombek had only been imprisoned for a brief period of time. The sentencing judge was obliged to form a view of the false imprisonment in the light of the jury’s verdict. His Honour assessed Golombek’s evidence in that light. He said:
In my view, the only explanation for him being in your custody for the period between Sunday afternoon and about midday on the Monday is that he was being falsely imprisoned for a significantly greater period of time than has been conceded by counsel for the defence and clearly, in my opinion, overnight. The strong probability is that he was restrained over that period of time.
In my view, it cannot be said that his Honour necessarily erred in arriving at the conclusion that Golombek had been hog-tied and kept overnight.
The sentencing remarks throw little light on the failure of the sentencing judge to fix a non-parole period. His Honour said only:
In view of the shortness of that period of time, it is not appropriate to fix a period for which you would be eligible for parole , but sufficient time is available for parole to take place.
The period of time to which his Honour referred was that between the expiration of 318 days already served and the sentence of 15 months’ imprisonment.
It may be that his Honour’s failure to fix a non-parole period was due to a determination that both applicants were to receive a like sentence and that as Shalala had served 704 days pre-sentence detention (which substantially exceeded the 15 months he was sentenced to serve), the applicant should serve the full term. I do not think that the principle of parity requires such result. If the sentencing judge thought that an appropriate head sentence was 15 months’ imprisonment, the next step was to consider whether a non-parole period was appropriate.
On the other hand, his Honour may have intended that each offender should serve at least 15 months’ imprisonment. If that was his intention, I consider that it was open to the sentencing judge, in the exercise of his discretion, to achieve that result by declining to fix a non-parole period for El-Azar.
The two possibilities seem to me to be equally open. I assume that his Honour reasoned in a legitimate manner in imposing the sentence he did.
Accordingly, I would dismiss the application for leave to appeal against sentence.
WEINBERG JA:
I agree with Buchanan JA.
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