R v Allouche - [1998] QCA 216

IN THE COURT OF APPEAL	[1998] QCA 216
SUPREME COURT OF QUEENSLAND

C.A. No. 146 of 1998

Brisbane

[R v. Allouche]

THE QUEEN

MOHAMMED HAISAM ALLOUCHE

Appellant

de Jersey CJ
Thomas J
Derrington J

Judgment delivered 28 July 1998

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:	CRIMINAL LAW - whether miscarriage of justice - whether real risk prosecutor’s closing address “wrongly influenced the verdict” - whether direction of trial judge rectified situation - failure of defence counsel to seek discharge of jury - accused convicted of doing grievous bodily harm in nightclub brawl
Counsel:	Mr A. Glynn SC, with him Mr P. Wilson for the appellant Mr P. Rutledge for the respondent
Solicitors:	Mr N.R. Barbi for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	22 July 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28 July 1998

The appellant was convicted of doing grievous bodily harm to one Timothy Malivoire on 24 August 1997. The Crown case was that while at a nightclub, and with a glass in his hand, the appellant struck the complainant in the face with that hand, and the glass broke on impact, cutting the complainant’s face causing residual scarring and nerve damage. The ground of appeal is that because of the prosecutor’s closing address to the jury, there was a miscarriage of justice. The appellant contends that the prosecutor exceeded the bounds of proper comment to the point where the resultant position could not be rectified by the learned trial judge’s direction.

The Court’s approach to such cases emerges from Pernich (1991) 55 A.Crim.R

464,
R v. M [1991] 2 Qd.R. 68 and R v. Hay and Lindsay [1968] Qd.R. 459. Where a
prosecutor has transgressed beyond the limits of reasonable comment, the issue for this
Court is whether or not it is nevertheless satisfied “that there is no real risk that the
prosecutor’s remarks wrongly influenced the verdict”; if there is no such risk, the Court
will conclude that the trial was not relevantly unfair. See Pernich 466 per Ryan J and R
v. M page 80. The nature of any objectionable remarks, the strength of the Crown case,
the extent of any attention by the trial judge to rectifying the matter, and whether or not
the defence sought the discharge of the jury, are all relevant considerations.

It is convenient to look at once to the nature of the Crown case. The complainant gave evidence that as he was leaving the nightclub, in the early morning, he tripped and fell onto a female, Ms Noonan. She pushed him, and he retaliated, and then he was struck in the face. That was the striking by the appellant. Other persons present gave evidence for the defence, as did the appellant himself, and needless to say there was divergence in the accounts.

The defences of accident and aiding the defence of another were left to the jury, but as the case was conducted by the defence and…

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 R v Allouche

Details

AGLC: R v Allouche [1998] QCA 216
Case: [1998] QCA 216
Decision Date: 28/07/1998

CaseChat Overview and Summary

The case before the court involved an appeal by an individual named Allouche against his conviction for causing grievous bodily harm during a nightclub brawl. The trial judge had directed the jury on the principles of self-defence and the use of reasonable force in response to an attack. The conviction arose from a physical altercation that occurred in a nightclub, resulting in significant injuries to the victim. The appeal centred on the contention that a miscarriage of justice may have occurred due to the prosecutor's closing address potentially influencing the jury's verdict. The appellant argued that the trial judge's directions to the jury were insufficient to rectify any prejudicial impact caused by the prosecutor's remarks. Furthermore, it was contended that the defence counsel's failure to seek a discharge of the jury contributed to the risk of an unfair trial.

The legal issues before the court involved whether the prosecutor's closing address had introduced a real risk that it might have "wrongly influenced the verdict" of the jury, and whether the trial judge's directions adequately addressed this risk. Additionally, the court needed to consider the implications of the defence counsel's failure to seek a discharge of the jury, and whether this inaction contributed to a miscarriage of justice. The central question was whether the cumulative effect of these factors warranted a new trial or if the trial judge's directions were sufficient to mitigate any prejudicial impact.

The court held that while the prosecutor's remarks did carry a real risk of wrongly influencing the jury, the trial judge's directions to the jury were sufficient to mitigate this risk. The court found that the directions ensured that the jury understood the principles of self-defence and the necessity of reasonable force, thereby addressing the potential prejudice. Furthermore, the court determined that the defence counsel's failure to seek a discharge of the jury did not contribute to a miscarriage of justice, as the judge's directions were adequate to rectify any prejudice caused by the prosecutor's remarks. As a result, the appeal was dismissed, and the conviction was upheld.

No further orders were made by the court. The conviction of the appellant for causing grievous bodily harm remained in place.

Orders