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Elmasri v R

Elmasri v R

Case [2010] NSWCCA 11 24 February 2010

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New South Wales
Court of Criminal Appeal

CITATION: Elmasri v R [2010] NSWCCA 11

HEARING DATE(S): 8 December 2009

JUDGMENT DATE:
24 February 2010

JUDGMENT OF: McClellan CJatCL at 1; Price J at 2; RA Hulme J at 3

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal and new trial - objections or points not raised in court below - misdirection and non-direction - whether certain statements made by accused capable of being construed as evidence of consciousness of guilt - whether trial judge failed to direct jury in relation to consciousness of guilt reasoning

LEGISLATION CITED: Criminal Appeal Rules

CATEGORY: Principal judgment

CASES CITED: Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
R v Ali [2002] VSCA 194; 135 A Crim R 426
R v Juric [2002] VACA 77; 129 A Crim R 408
R v Nguyen [2001] VSCA 1; 118 A Crim R 479
R v ON [2009] QCA 62
R v SBB [2007] QCA 173; 175 A Crim R 449
Regina v Smit & Ors [2004] NSWCCA 409
Sanchez v R [2009] NSWCCA 171
The Queen v MC; DPP v MC [2009] VSCA 122
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

PARTIES: Iad ELMASRI (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/15169

COUNSEL: S Odgers SC with K Ginges (Applicant)
S Dowling (Respondent)

SOLICITORS: Pericaud Zraika
Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/15169

LOWER COURT JUDICIAL OFFICER: Bennett SC DCJ

LOWER COURT DATE OF DECISION: 19 February 2009

2007/15169

McCLELLAN CJ at CL
PRICE J
R A HULME J
24 February 2010

Iad ELMASRI v Regina

Judgment

1 McCLELLAN CJ at CL:

I agree with R A Hulme J.

2 PRICE J: I agree with R A Hulme J.

3 R A HULME J: The appellant was found guilty by a jury on 27 October 2008 of one count of robbery whilst armed. His Honour Judge Bennett SC imposed a sentence of imprisonment for 5 years with a non-parole period of 2 years 6 months.

4 The appeal is concerned only with the conviction. Two grounds are relied upon. In essence they assert a failure by the trial judge to give directions (that he was not asked to give) in relation to certain things said by the appellant to investigating police officers prior to his arrest. It is contended that the jury should have been directed in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 about the care with which they should approach the issue of consciousness of guilt reasoning.

The evidence at trial

5 There was no dispute that a security guard was robbed as he left a McDonalds restaurant at Enfield with the takings of approximately $28,000 shortly before 11.00am on 9 October 2006. The appellant was employed at this store as a manager. He was rostered to work…

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 Elmasri v R

Details

AGLC: Elmasri v The Queen [2010] NSWCCA 11
Case: [2010] NSWCCA 11
Decision Date: 24 February 2010

CaseChat Overview and Summary

The appellant, Elmasri, was convicted of murder in the Supreme Court of Victoria and subsequently appealed against his conviction. The central issue in the appeal was whether certain statements made by the appellant during the investigation were capable of being construed as evidence of consciousness of guilt. The appellant also argued that the trial judge failed to adequately direct the jury on the principles of consciousness of guilt, a critical aspect of the case.

The court examined whether the statements made by the appellant could be interpreted as evidence of consciousness of guilt. This involved considering the content and context of the statements, as well as whether they could reasonably be seen as an attempt to avoid or minimise the significance of incriminating evidence. The court also assessed whether the trial judge correctly instructed the jury on the principles of consciousness of guilt, ensuring that the jury understood the relevance and limitations of such evidence.

In determining the appeal, the court held that the trial judge did not err in allowing the statements to be considered as evidence of consciousness of guilt. The court found that the statements were indeed capable of being interpreted in this manner and that the trial judge provided adequate direction to the jury regarding the principles of consciousness of guilt. The appeal was ultimately dismissed, with the court affirming the conviction.

No further orders were made by the court beyond the dismissal of the appeal and the affirmation of the conviction.

Orders