El Rakhawy v The Queen

Link copied
Case Copied 23 min read

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0064

ADHIL GHEBRAT

Appellant

v

THE QUEEN

Respondent

---

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)

---

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.

---

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:

  1. I agree with Tate JA.

TATE JA:

  1. 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.

  1. 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
  1. 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.

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

  1. 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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read El Rakhawy v The Queen and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2011] VSCA 299
Decision Date

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.