El Khouli v The Queen - [2019] NSWCCA 204

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: El Khouli v R [2019] NSWCCA 204
Hearing dates: 5 August 2019
Decision date: 28 August 2019
Before: Leeming JA at [1];
Garling J at [80];
Wright J at [81]
Decision:
1. Extend the time within which to appeal to 8 March 2019.
2. Grant leave to appeal, confined to grounds 1 and 4, and otherwise refuse leave.
3. Dismiss the appeals against both conviction and sentence.

Catchwords: CRIMINAL LAW – appeal against conviction and sentence – appellant found guilty of dishonestly damaging property by fire with a view to making financial gain and two counts of doing acts with intent to pervert the course of justice – Crimes Act 1900 (NSW) ss 197 and 319 – whether convictions unreasonable having regard to paucity of evidence concerning (a) appellant being located at scene of fire (b) the cause of the fire (c) joint criminal enterprise and (d) financial gain – whether primary judge failed to comply with Evidence Act 1995 (NSW) s 18 concerning evidence from appellant’s de facto partner at the time of the fire – whether miscarriage of justice concerning jury directions – whether leave should be given to advance matters not raised at trial – whether sentence manifestly excessive, or contrary to principles of parity and totality – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 197, 319
Criminal Appeal Act 1912 (NSW), ss 5, 5F
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), s 18
Cases Cited: Greenhalgh v R [2017] NSWCCA 94
Kresovic v R [2018] NSWCCA 37
Mulvihill v R [2016] NSWCCA 259
Owen v R [2017] NSWCCA 54
ZA v R [2017] NSWCCA 132; 267 A Crim R 105
Category: Principal judgment
Parties: Ahmed El Khouli (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Bateman (Applicant)
B Baker (Respondent)
Solicitors:
El Masri and Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/344759
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 December 2016

Before:

His Honour Judge Jeffreys DCJ

File Number(s):

2012/344759

Judgment

LEEMING JA: Mr Ahmed El Khouli seeks leave to appeal against his conviction following a 25 day trial in the District Court of New South Wales before a judge and jury of 12 on an indictment containing one count of dishonestly damaging by means of fire property with a view to making financial gain (in the form of an insurance payment), contrary to s 197(1)(b) of the Crimes Act 1900 (NSW), and two counts of doing acts (namely, causing two witnesses to provide untruthful information to police during an investigation) with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW). Following the jury’s verdicts, he was sentenced by the primary judge to an aggregate sentence of 8½ years with a non-parole period of 5½ years. The primary judge specified indicative sentences of…

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 Khouli v The Queen

Details

AGLC: El Khouli v The Queen [2019] NSWCCA 204
Case: [2019] NSWCCA 204
Decision Date: 28 August 2019

CaseChat Overview and Summary

The appellant, El Khouli, sought to appeal against his conviction and sentence for dishonestly damaging property by fire with intent to gain financially and two counts of perverting the course of justice. The case was heard in the Court of Criminal Appeal in New South Wales. The appellant was found guilty of these charges under sections 197 and 319 of the Crimes Act 1900 (NSW). The primary issues for the court were whether the convictions were unreasonable given the limited evidence concerning the appellant's presence at the fire scene, the cause of the fire, any joint criminal enterprise, and the financial gain obtained. Additionally, the court had to determine if the primary judge failed to comply with section 18 of the Evidence Act 1995 (NSW) regarding the admission of evidence from the appellant's de facto partner. The appeal also questioned whether there was a miscarriage of justice due to jury directions and whether leave should be granted to address issues not raised at trial. The final consideration was whether the sentence was manifestly excessive or contrary to the principles of parity and totality.

The court examined the evidence presented and concluded that the convictions were not unreasonable despite the limited evidence. The court found that the evidence, when viewed as a whole, was sufficient to support the jury's verdict. The court further held that the primary judge had not erred in admitting the evidence from the appellant's de facto partner, as it was relevant and did not unfairly prejudice the appellant. Regarding the jury directions, the court determined that there was no miscarriage of justice and that the directions were adequate. The court also declined to grant leave to advance matters not raised at trial, as it would be inappropriate to do so. Finally, the court assessed the sentence and found it was not manifestly excessive or contrary to the principles of parity and totality.

In light of the court's findings, the appeal was dismissed. The convictions and sentence were upheld, and the appellant's appeal against his conviction and sentence was unsuccessful. The court's decision was based on a thorough analysis of the evidence and the law, ensuring that justice was served in accordance with legal principles and the facts of the case.

Orders