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El-Jalkh v R

El-Jalkh v R

Case [2009] NSWCCA 139 25 June 2009

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New South Wales
Court of Criminal Appeal

CITATION: El-Jalkh, Antoine v R [2009] NSWCCA 139

HEARING DATE(S): 5 May 2009

JUDGMENT DATE:
25 June 2009

JUDGMENT OF: Spigelman CJ at 1; James J at 2; Simpson J at 158

DECISION: 1. Leave under r 4 of the Criminal Appeal Rules granted to argue grounds of appeal 2 and 3.
2. Ground 2 upheld.
3. The appeal against conviction allowed.
4. New trial ordered.

CATCHWORDS: CRIMINAL LAW — character of the accused — summing-up — putting the defence case — proviso to s 6(1) Criminal Appeal Act

LEGISLATION CITED: Crimes Act
Criminal Appeal Act
Criminal Code Act 1995 (Cth)
Criminal Procedure Act
Customs Act

CASES CITED: Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180
Cleland v The Queen (1982) 151 CLR 1
Melbourne v The Queen (1998-1999) 198 CLR 1
R v Coleman (1990) 19 NSWLR 467
R v Condon (1995) 83 A Crim R 335
R v Fuller (1994) 34 NSWLR 233
R v Gutierrez [2004] NSWCCA 22
R v Lawrence (1982) AC 510-519
R v Meher [2004] NSWCCA 355
R v Piazza (1997) 94 A Crim R 459
R v Tillott (1991) 53 A Crim R 46
R v Zorad (1990) 19 NSWLR 91
Robinson v The Queen (1991) 180 CLR 531
Simic v The Queen (1980) 144 CLR 319
Taleb v The Queen [2006] NSWCCA 119
Weiss v The Queen (2005) 224 CLR 300

PARTIES: EL-JALKH, Antoine
Regina

FILE NUMBER(S): CCA 2007/3230

COUNSEL: P D Lange (Appellant)
R F Sutherland SC (Respondent)

SOLICITORS: Nyman Gibson Stewart
Commonwealth Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0965

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 16 February 2006

2007/3230

SPIGELMAN CJ
JAMES J
SIMPSON J
THURSDAY 25 JUNE 2009

EL-JALKH, Antoine v R

Judgment

1 SPIGELMAN CJ: I agree with James J.

2 JAMES J: Antoine (Tony) El-Jalkh appealed against his conviction after a trial in the District Court before Judge Williams and a jury on a charge that between 1 August 2002 and 1 May 2003 he conspired with Paul Alexander Kellaway and others to import into Australia prohibited imports to which s 11.5(1) of the Criminal Code Act 1995 (Cth) and s 233B of the Customs Act (since repealed) applied, being not less than a commercial quantity of methylenedioxymethamphetamine (MDMA). The appellant was sentenced to a term of imprisonment for 12 years with a non-parole period of seven years six months commencing on 11 October 2005, the date on which the jury returned its verdict of guilty, the appellant having been at liberty on bail until the verdict of guilty was returned. In the event of his appeal against his conviction being dismissed, the appellant seeks leave to appeal against the sentence imposed on him.

The trial generally

3 The trial of the appellant commenced on 14 September 2005. The Crown case, which commenced on 14 September 2005, continued until the Crown case…

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-Jalkh v R

Details

AGLC: El-Jalkh v R [2009] NSWCCA 139
Case: [2009] NSWCCA 139
Decision Date: 25 June 2009

CaseChat Overview and Summary

The case of El-Jalkh v R involved a criminal appeal by the accused, Mr El-Jalkh, against his conviction and sentence. The appeal focused on the summing-up by the trial judge, specifically whether the judge had adequately addressed the defence case during the summing-up. The matter was heard in the High Court of Australia.

The legal issues that the court had to decide were whether the trial judge had failed to adequately put the defence case during the summing-up, and if this constituted a miscarriage of justice. The appeal also raised questions about the applicability of the proviso to section 6(1) of the Criminal Appeal Act, which provides for an appeal on the ground of an error of law in the summing-up.

The court determined that the trial judge had not adequately put the defence case, which led to a miscarriage of justice. The court held that the proviso to section 6(1) of the Criminal Appeal Act applied, as the error in the summing-up was an error of law. Consequently, the court quashed the conviction and ordered a retrial.

The final orders of the court were that the conviction and sentence of Mr El-Jalkh were quashed, and a retrial was ordered. The court emphasised the importance of ensuring that the trial judge accurately and fairly summarises the defence case during the summing-up to avoid potential miscarriages of justice.

Orders