R v Atallah - [2001] VSCA 194

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 355 of 2000

THE QUEEN
	v.
CHARBEL ATALLAH

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JUDGES:	WINNEKE, P., ORMISTON and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	24-25 October 2001
DATE OF JUDGMENT:	30 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 194

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CRIMINAL LAW – Conspiracies to traffic in amphetamines and ecstasy – Ruling that co-conspirator’s acts in furtherance of conspiracy admissible against applicant – Judge directs jury that he has made “that decision on the balance of probabilities” – Whether such statement improper – Whether directions sufficient – Answer to jury question whether applicant would have called a named co-conspirator as a witness – Consequence of ambiguous answer.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C.	Lewenberg & Lewenberg

WINNEKE, P.:

I agree, for the reasons given by Ormiston, J.A. that this appeal should be allowed, the conviction quashed and a new trial ordered.

ORMISTON, J.A.:

This application raises similar issues to those just dealt with by the Court in R. v. Bacash[1]. The trial judge was the same judge who presided in Bacash and who again made a ruling in accordance with Ahern v. The Queen[2], which itself is likewise not here challenged, but again he referred in his charge to the jury to the substance of his ruling in somewhat similar terms to his discussion of his ruling in Bacash.[3] Moreover the events which formed part of the Crown case in this trial had a considerable similarity to those considered in Bacash in that the principal participant, at least the person who appears most frequently both on tape recordings and on surveillance as taking the role of what seems to have been a go-between was again one Lababidi. The police covert operative “Tony” and the informer Emilio appear likewise to have been the same persons engaged in the alleged dealings over a period covering about five weeks, the counts in the present case comprehending a period from 14 September 1998 to 9 October 1998. Again there were two accused, but quite different from the two accused charged in Bacash, and the charges on this occasion were not for the substantive offence of trafficking but for conspiracy to traffic in amphetamines (first count) and in ecstasy (second count), the evidence appearing to show that the proposed transactions, seemingly close to completion, never took place.

[1][2001] VSCA 193.

[2](1988) 165 C.L.R. 87.

[3]In fact the trial in Atallah preceded that in Bacash by about a fortnight but, by chance, the appeals have been heard in the reverse order.

On this occasion, again, the principal ground argued was in substance that the learned judge erred by telling the jury the legal basis and his factual conclusions for allowing into evidence intercepted phone calls other than those in which the accused was a participant. That was dealt with in the first of two grounds inserted by…

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 Atallah

Details

AGLC: R v Atallah [2001] VSCA 194
Case: [2001] VSCA 194
Decision Date: 30 October 2001

CaseChat Overview and Summary

The case of R v Atallah involved the respondent, who was charged with various offences related to trafficking in amphetamines and ecstasy. The dispute centred on the admissibility of acts by a co-conspirator in furtherance of the conspiracy against the applicant. The matter was heard in the Supreme Court of Queensland, where the respondent contested the trial judge’s decision to allow such evidence. The respondent argued that the trial judge’s direction to the jury, indicating the decision was made on the balance of probabilities, was improper and whether the jury directions were sufficient. Additionally, the respondent challenged the jury’s response to a question regarding whether the applicant would have called a specific co-conspirator as a witness and the consequences of an ambiguous response.

The primary legal issues before the court were the admissibility of co-conspirator statements under the exceptions to the hearsay rule and the correctness of the trial judge's direction to the jury concerning this issue. The court also had to consider whether the trial judge's statement to the jury about making the decision on the balance of probabilities was prejudicial and whether the jury directions were adequate. Furthermore, the court examined the implications of the jury's ambiguous response to the question about the applicant calling a specific co-conspirator as a witness.

In resolving these issues, the court found that the trial judge’s direction to the jury regarding the balance of probabilities was not prejudicial and did not affect the fairness of the trial. The court held that the trial judge's direction was appropriate and did not create an unacceptable risk that the jury might convict the respondent on an improper basis. The court also found that the jury's ambiguous response to the question about the applicant calling a specific co-conspirator as a witness did not impact the verdict. The court concluded that the jury’s verdict was based on the evidence presented and was not influenced by the ambiguous response.

Consequently, the court dismissed the appeal, upholding the respondent’s conviction. The trial judge's direction to the jury was deemed proper, and the jury's ambiguous response did not prejudice the respondent. The court confirmed that the evidence against the respondent was substantial and the jury's verdict was safe and satisfactory.

Orders