El Rakhawy v The Queen - [2011] VSCA 299

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0064

ADHIL GHEBRAT	Appellant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN and TATE JJA and SIFRIS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 September 2011
DATE OF JUDGMENT	12 October 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 299
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge Wood, 17 March 2011)

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CRIMINAL LAW – Appeal against conviction – Armed robbery – Fingerprints found at crime scene said to match accused – Whether judge failed to summarise fingerprint evidence properly – Whether judge properly summarised defence case – Whether conviction unsafe and unsatisfactory – Retrial ordered.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr L C Carter	Robert Stary Lawyers
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Tate JA.

TATE JA:

On 12 August 2008, a man wearing a disguise and armed with a taser type weapon entered Steve’s Liquor Store in Springvale and took a bottle of Hennessy Cognac from the shelf and left the store without payment.

On 2 December 2010, Mr Adhil Ghebrat, the appellant, was found guilty by a jury of common law assault and armed robbery arising from the incident at Steve’s Liquor Store. The appellant was sentenced as follows:

Charge on Indictment Offence Verdict Sentence Cumulation

1. Armed robbery
[s 75A(1) Crimes Act 1958 (Vic)] Guilty 3 years Base

3. Common law assault Guilty 9 months None

Total Effective Sentence: 3 years’ imprisonment

Non-Parole Period: 2 years

Pre-sentence Detention Declared: 678 days

On 8 June 2011, Buchanan JA granted an application for leave to appeal against conviction on the following grounds:

Ground 1 – The learned judge failed to adequately summarise the submission of counsel for the accused in the closing address; in particular, as it related to the evidence of Gordon and the presence of further unidentified fingerprints;

Ground 3 – The learned judge failed to adequately summarise the evidence of the witness Gordon in that he (a) failed to draw the jury’s attention to his evidence in relation to verification and the lack of adherence to best practice and (b) misstated his evidence in relation to the possibility of mistake and the

system of analysis used;

Ground 4 – The learned judge erred in (a) allowing the jury to use hearsay evidence in support of the witness Gordon’s evidence and (b) failing to direct the jury that they could not use the evidence in that way;

Ground 5 – The verdict is unsafe, unsatisfactory and unreasonable in that the jury must have entertained doubt as to the identification of the accused as the offender.

Leave was refused in respect of an allegation of breach of procedural fairness, Ground 2.

The grounds of appeal were inter-related, focusing upon the alleged inadequacy of the trial judge’s summary of the defence case to the jury, especially with respect to the evidence given by Senior Constable Gordon on the verification stage 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.

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Details

Case: [2011] VSCA 299
Decision Date: 12 October 2011

CaseChat Overview and Summary

The appellant, Mr El Rakhawy, was convicted of armed robbery and sentenced to imprisonment. He appealed to the High Court against his conviction, arguing that the trial judge had erred in the way he summarised the fingerprint evidence and the defence case. The central issue in this appeal was whether the trial judge's summation of the evidence was deficient in a manner that rendered the conviction unsafe and unsatisfactory. Specifically, the appellant contended that the trial judge did not properly summarise the fingerprint evidence, which was a crucial part of the prosecution's case, and did not adequately address the defence submissions.

The court considered whether the trial judge's summing up contained errors that could have led to a miscarriage of justice. It examined the fingerprint evidence and the trial judge's summation of it, as well as the defence submissions and the judge's response to them. The court held that the trial judge had not properly summarised the fingerprint evidence and failed to adequately address the defence case. These errors were significant enough to potentially affect the safety and satisfaction of the conviction. The court found that the appellant's conviction was unsafe and unsatisfactory due to these deficiencies in the trial judge's summation of the evidence.

As a result of this finding, the court quashed the conviction and ordered a retrial. This decision underscores the importance of accurate and comprehensive summations by trial judges, particularly in cases where crucial evidence, such as fingerprints, plays a significant role in the prosecution's case. The court's decision highlights the need for trial judges to carefully consider and adequately summarise both prosecution evidence and defence submissions to ensure the fairness and integrity of the trial process.

Orders