JUDGES:	MAXWELL P, REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 June 2014
DATE OF JUDGMENT:	5 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 200
JUDGMENT APPEALED FROM:	R v Kheir (Unreported, County Court of Victoria, Judge Chettle, Conviction 7 June 2013, Sentence 27 June 2013)

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CRIMINAL LAW – Conviction – Evidence – Opinion evidence – Lay opinion – Expert evidence – Ad hoc expert – Specialised knowledge based on training, study or experience – Basis rule – Identification – Identification evidence – Voice identification – Jury directions – Conduct of trial – Application for leave to appeal against conviction refused – Evidence Act 2008, ss 76, 78 and 79.

CRIMINAL LAW – Sentence – Blackmail – Aggravated burglary – Armed robbery – Recklessly causing injury – Whether sentences manifestly excessive – Totality – Whether orders for cumulation excessive – Application for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Dickinson QC with Mr J J Lavery	C D Traill Lawyers
For the Respondent	Mr D A Trapnell QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA

BEACH JA:

Introduction

After a 17 day trial, the applicant was found guilty by a jury of one charge of aggravated burglary, two charges of armed robbery, one charge of recklessly causing injury and one charge of blackmail. Following a plea, he was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Aggravated burglary 25y 6y Base

2 Armed robbery 25y 4y 1y

4 Recklessly causing injury 10y 1y

5 Armed robbery 25y 3y 6m

12 Blackmail 4y 2y

Total Effective Sentence: 9y 6m

Non-Parole Period: 7y

The applicant was tried with two co-accused, George Maghrabi and Ramsen Joseph, each of whom was convicted of one charge of aggravated burglary, two charges of armed robbery, one charge of recklessly causing injury, one charge of kidnapping, one charge of intentionally causing serious injury and one charge of blackmail. Maghrabi was sentenced to a total effective sentence of 11 years’ imprisonment with a non-parole period of seven years and six months, and Joseph to a total effective sentence of 14 years and six months’ imprisonment with a non-parole period of 11 years.

The applicant seeks leave to appeal against conviction and sentence. The proposed grounds in relation to the applicant’s conviction are as follows:

1The trial miscarried in circumstances where the prosecution led hearsay evidence as to the identity of the applicant in that they led evidence of his name from the witness Memisevic.
2Alternatively, the trial judge erred in failing to give any direction to the jury as to what use they could or could not make of the evidence of that applicant’s identity.
4The trial miscarried in circumstances where the prosecution asserted that various intercepted telephone conversations and call charge records could be attributed to the applicant…

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 Kheir v The Queen

Details

AGLC: Kheir v The Queen [2014] VSCA 200
Case: [2014] VSCA 200
Decision Date: 5 September 2014

CaseChat Overview and Summary

The case of Kheir v The Queen involved the appellant, Kheir, who was convicted of various criminal offences, including blackmail, aggravated burglary, armed robbery, and recklessly causing injury. The appeal was against both the conviction and the sentence. The Supreme Court of Victoria was the court of appeal.

The primary legal issues addressed were whether the trial judge erred in admitting certain evidence, particularly lay opinion evidence and ad hoc expert evidence, and whether the jury was properly directed on the issues of voice identification and the conduct of the trial. The appellant also argued that the sentence was manifestly excessive and that the orders for cumulation of sentences were excessive.

The court found that the trial judge did not err in admitting the evidence in question, as the lay opinion and ad hoc expert evidence was relevant and did not contravene the basis rule. The court also determined that the jury was adequately directed on the issues of voice identification and the conduct of the trial. Regarding the sentence, the court held that it was not manifestly excessive and the orders for cumulation were appropriate. Consequently, the application for leave to appeal against both the conviction and the sentence was refused.

The final orders of the court were to dismiss the appeal against both conviction and sentence. The court did not grant leave to appeal, affirming the lower court's decisions on both the conviction and the sentence.

Orders