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 2009JUDGMENT 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 ActCASES 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 300PARTIES: EL-JALKH, Antoine
ReginaFILE NUMBER(S): CCA 2007/3230 COUNSEL: P D Lange (Appellant)
R F Sutherland SC (Respondent)SOLICITORS: Nyman Gibson Stewart
Commonwealth Director of Public ProsecutionsLOWER 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
THURSDAY 25 JUNE 2009SPIGELMAN CJ
JAMES J
SIMPSON J
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prohibited imports to which s 11.5(1) of the Criminal Code Act 1995 (Cth) and s 233B of the Customs Act (since repealed) applied, being not less than a commercial quantity of methylenedioxymethamphetamine (MDMA).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…
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- El-Jalkh v R [2009] NSWCCA 139
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- [2009] NSWCCA 139
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CaseChat Overview and Summary
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.
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