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El Bayeh v The Queen

El Bayeh v The Queen

Case [2011] VSCA 44 25 February 2011

Manifest Excessiveness

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0500
TOREQ EL BAYEH	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE, NEAVE and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 February 2011
DATE OF JUDGMENT	25 February 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 44
JUDGMENT APPEALED FROM	[2008] VSC 636 (Curtain J)

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CRIMINAL LAW – Conviction – Trafficking in a drug of dependence and possession of equipment relating to trafficking – Evidence – Evidence destroyed by Forensic Services Centre prior to trial – Whether destruction of evidence lawful – Trial – Whether judge erred in refusing to stay trial or alternatively failing to exclude evidence – Fair trial – Whether destruction of evidence deprived applicant of fair trial – Application for leave to appeal against conviction refused – The Queen v Edwards (2009) 255 ALR 399, R v Lobban (2000) 77 SASR 24 considered.

CRIMINAL LAW – Sentencing – Double punishment – Whether drug the subject possession the same as drug trafficked – Role – Amount of drug trafficked – Whether judge sentenced on basis of correct amount – Manifest excessiveness – Whether three and a half years with a non parole period of two and a half years manifestly excessive – Application for leave to appeal against sentence refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr C B Boyce	Robert Stary & Associates
For the Respondent	Mr A Tinney SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

Following a trial in the Criminal Division of the Supreme Court, the applicant was convicted of one count of trafficking in a drug of dependence and one count of possession of equipment relating to trafficking, and was sentenced to a total effective sentence of three and a half years’ imprisonment with a non-parole period of two and a half years. He now seeks leave to appeal against conviction and sentence.

The Crown case at trial

The applicant was presented for trial on a count of trafficking in a drug of dependence in not less than a commercial quantity (Count 1); as an alternative count, the count of trafficking simpliciter (Count 2); and the count of possessing equipment relating to trafficking (Count 3).

The Crown alleged that between 10 and 11 April 2006 the applicant was engaged in the movement of not less than a commercial quantity of phenyl‑2‑propanone (‘P2P’) (which is a precursor chemical to the manufacture of methylamphetamine and itself a drug of dependence) and that, on 11 April 2006, he was in possession of various items and chemicals (namely, the P2P, methylamine, two Buchner funnels and filter papers) with the intention that they be used for the purposes of trafficking in a drug of dependence, in particular, in the manufacture of methylamphetamine.

The offending was said to have arisen in the context of Horty and Milad Mokbel's alleged drug trafficking activities. Horty Mokbel was alleged to be the applicant’s co-offender and was presented on a count of trafficking, between 1 November 2004…

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.

Continue reading El Bayeh v The Queen

Details

AGLC: El Bayeh v The Queen [2011] VSCA 44
Case: [2011] VSCA 44
Decision Date: 25 February 2011

CaseChat Overview and Summary

The case of El Bayeh v The Queen involved a criminal conviction for trafficking in a drug of dependence and possession of equipment relating to trafficking. The matter was heard in the High Court of Australia, which was asked to review the decision of the lower court that had upheld the conviction and sentence. The applicant contested the legality of the destruction of evidence by the Forensic Services Centre prior to the trial, arguing that this deprived him of a fair trial. Furthermore, the applicant challenged the sentencing, asserting that the sentence imposed was manifestly excessive.

The legal issues before the court were whether the destruction of evidence by the Forensic Services Centre was lawful and, if not, whether this irregularity resulted in the applicant being deprived of a fair trial. Additionally, the court had to consider whether the sentence imposed was manifestly excessive, particularly in light of the amount of the drug trafficked and the role of the applicant. The applicant's arguments drew on The Queen v Edwards and R v Lobban, among other authorities, to support his claims.

The High Court held that the destruction of evidence was lawful, and thus, the applicant's right to a fair trial was not infringed. The court found that the judge had not erred in refusing to stay the trial or exclude the evidence, as the destruction did not prejudice the applicant's defence. Regarding sentencing, the court determined that the sentence was not manifestly excessive. The amount of the drug trafficked and the applicant's role were properly considered by the sentencing judge, and the sentence did not exceed the bounds of reasonableness. Consequently, the application for leave to appeal both the conviction and the sentence was refused.

No further orders were made by the court beyond the refusal of the application for leave to appeal. The conviction and sentence of the lower court were upheld, and the applicant's challenges were rejected on both procedural and substantive grounds.

Orders