JUDGES:	REDLICH and SANTAMARIA JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2016
DATE OF JUDGMENT:	16 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 326
JUDGMENT APPEALED FROM:	[2015] VCC 1914 (Judge Ryan)

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CRIMINAL LAW – Appeal – Conviction – One charge of kidnapping, one charge of false imprisonment and one charge of intentionally cause serious injury – Unreliable evidence direction – Jury Directions Act 2015 s 32 – Effect of smoking cannabis on memory and loss of consciousness during offending – Whether evidence was ‘evidence of a kind that may be unreliable’ – Allen (A pseudonym) v The Queen (2013) 39 VR 629, Young v The Queen [2015] VSCA 265, discussed – Unreliability arising from cannabis use fully exposed to jury through cross-examination and final address – Jury able to draw from own experiences – No warning required – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Guilty verdict unreasonable or cannot be supported having regard to the evidence – Circumstantial case – Evidence of victim in conjunction with strong circumstantial case – Open to jury to be satisfied of applicant’s guilt – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Current sentencing practice – Hills v The Queen [2011] VSCA 364; Cini v The Queen [2013] VSCA 115; Hanna v The Queen [2014] VSCA 187; Chol v The Queen [2016] VSCA 252, considered – Objective gravity of offending – Non-parole period – Kumova v The Queen (2012) 37 VR 538, considered – Sentence not outside available range – No mitigating circumstances requiring lower non-parole period – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC	-
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA

SANTAMARIA JA

BEALE AJA:

Following a 14-day trial by jury in the County Court the applicant was convicted of one charge of kidnapping, one charge of false imprisonment and one charge of intentionally causing serious injury. He seeks leave to appeal against his conviction on the following grounds:

1.That a substantial miscarriage of justice resulted from the failure of the learned trial judge to give to the jury an unreliable evidence direction.
2.That the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence.

The applicant, having entered pleas of guilty to four summary charges of possess a prohibited weapon, and one summary charge of possess a sch 4 poison, was sentenced by the trial judge as follows:

Charge Offence Maximum Sentence Cumulation

1.
Kidnapping

[Common law]
25 years
[Crimes Act 1958, s 320] 5 years 18 months

2.

False imprisonment [Common law]

10 years
[Crimes Act 1958, s 320]

3 years

12 months

3.
Intentionally cause…

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 Elmaghraby v The Queen

Details

AGLC: Elmaghraby v The Queen [2016] VSCA 326
Case: [2016] VSCA 326
Decision Date: 16 December 2016

CaseChat Overview and Summary

The appellant, Mr Elmaghraby, appealed against his conviction and sentence in the County Court at Melbourne. He was found guilty of kidnapping, false imprisonment, and intentionally causing serious injury. The appeal was heard in the Court of Appeal, Supreme Court of Victoria. Mr Elmaghraby argued that the trial judge should have given an unreliable evidence direction under section 32 of the Jury Directions Act 2015 regarding the evidence of the victim, due to the effects of cannabis use on her memory and loss of consciousness during the offending. He also contended that the guilty verdict was unreasonable or could not be supported by the evidence, and that the sentence was excessive.

The court considered whether the evidence was ‘evidence of a kind that may be unreliable’ within the meaning of section 32 of the Jury Directions Act 2015. The court noted that the unreliability arising from the victim's cannabis use was fully exposed to the jury through cross-examination and the final address. The court also noted that the jury was able to draw from their own experiences and did not require a warning. The court found that the victim's evidence, in conjunction with the strong circumstantial evidence, was open to the jury to be satisfied of Mr Elmaghraby's guilt. The court further found that the sentence was not outside the available range and there were no mitigating circumstances requiring a lower non-parole period.

The Court of Appeal held that the trial judge was not required to give an unreliable evidence direction under section 32 of the Jury Directions Act 2015, as the unreliability arising from the victim's cannabis use was fully exposed to the jury. The court found that the guilty verdict was open to the jury to be satisfied of Mr Elmaghraby's guilt, and the sentence was not excessive. The application for leave to appeal was refused.

The final orders of the court were that the appeal against conviction and sentence was dismissed, and the conviction and sentence of the County Court at Melbourne were upheld.

Orders