Khalil v The King - [2023] VSCA 192

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0042

ZENON KHALIL	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2023
DATE OF JUDGMENT:	17 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 192
JUDGMENT APPEALED FROM:	[2022] VCC 203 (Judge Hampel)

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CRIMINAL LAW – Leave to appeal – Conviction – Characterisation of witness’s evidence in prosecution address – Whether prosecutor misled jury – Jury would have understood flaws of witness – Witness’s account not essential.

CRIMINAL LAW – Leave to appeal – Conviction – Incompetence of trial counsel – Whether substantial miscarriage of justice arose – Counsel made legitimate forensic decisions.

CRIMINAL LAW – Leave to appeal – Conviction – Prosecution disclosure – Whether substantial miscarriage of justice arose from late provision of documents – Timing of providing edited versions of transcripts commonplace – No prejudice to defence case from late provision of warrant – Leave to appeal refused.

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Counsel
Applicant:		In person
Respondent:		Mr DA Glynn
Solicitors
Applicant:	—
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
TAYLOR JA:

On 10 February 2022, following a six-day trial, a jury in the County Court convicted the applicant, now aged 47 years,[1] of home invasion,[2] intentionally cause injury[3] and theft.[4] For the purposes of sentencing, he subsequently pleaded guilty to the summary offence of committing an indictable offence whilst on bail.[5]
[1]His date of birth is 1 February 1976.
[2]Contrary to Crimes Act 1958 s 77A.
[3]Contrary to Crimes Act 1958 s 18.
[4]Contrary to Crimes Act 1958 s 74.
[5]Contrary to Bail Act 1977 s 30B.
Following a plea on 16 February 2022, the applicant was sentenced on 24 February 2022 to a total effective sentence of 7 years. A non-parole period of 4 years and 6 months was set.
The applicant seeks leave to appeal against conviction on the following proposed grounds:
1.A substantial miscarriage of justice arose from Mr Batten (‘the prosecutor’) deliberately misleading the jury.
2.A substantial miscarriage of justice arose from not being represented competently.
3.A substantial miscarriage of justice arose from Her Honour at 12:42, 13:48, 14:20, 15:40 and 16:25 suggests to the jury that Mr Francesco Iaquinto and Mr Ajith Gomes (‘the complainant’) essentially told the same story, and only the applicant’s version differed.
4.A substantial miscarriage of justice arose from the prosecution providing the defence with a copy of the edited versions of the record of interview and covert transcripts so late; not until the third day of trial, thus depriving the applicant and his legal representatives of the opportunity to check or oppose them correctly.
The applicant did not press ground 3.

Background

On 25 March 2019, a number of phone calls were exchanged between the complainant and telephones used by the applicant and Ms Kerry-Anne Stapley. The applicant and Stapley had, a few weeks before, met and commenced an intimate relationship. The complainant was Stapley’s former partner.
Shortly after 2:00 pm on…

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 Khalil v The King

Details

AGLC: Khalil v The King [2023] VSCA 192
Case: [2023] VSCA 192
Decision Date: 17 August 2023

CaseChat Overview and Summary

In the matter of Khalil v The King, the applicant sought leave to appeal against his conviction. The applicant had been convicted of various criminal offences following a trial in the Supreme Court of Victoria. The applicant raised several grounds for appeal, including claims that the prosecutor had misled the jury, that his trial counsel had been incompetent, and that late disclosure of documents by the prosecution had caused a miscarriage of justice.

The primary legal issues before the court were whether the prosecutor's characterisation of a witness's evidence misled the jury, whether the trial counsel's decisions amounted to incompetence, and whether the late disclosure of documents prejudiced the applicant's case. The court considered the prosecutor's conduct in light of the witness's credibility and whether the jury would have understood the flaws in their account. Regarding the trial counsel, the court assessed whether the counsel's decisions were legitimate and whether they led to a substantial miscarriage of justice. Finally, the court examined the timing and impact of the prosecution's disclosure of documents on the applicant's defence.

The court found that the prosecutor's characterisation of the witness's evidence did not mislead the jury, as the flaws in the witness's account were apparent and the jury would have understood them. The court also determined that the trial counsel's decisions were legitimate and did not result in a substantial miscarriage of justice. Regarding the late disclosure of documents, the court held that the timing of providing edited versions of transcripts was commonplace and that the late provision of the warrant did not prejudice the defence case. Consequently, the court refused the applicant leave to appeal.

Orders