R v Chaouk - [2013] VSC 48

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0134 of 2012

THE QUEEN

MATWALI CHAOUK

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2013
DATE OF RULING:	15 February 2013
CASE MAY BE CITED AS:	R v Chaouk
MEDIUM NEUTRAL CITATION:	[2013] VSC 48

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CRIMINAL LAW -- Application for temporary stay -- Lack of instructing solicitor for counsel for the Accused -- Legal Aid Guidelines -- Nature of trial judge’s authority -- Dietrich v The Queen (1992) 177 CLR 292 -- Section 197 Criminal Procedure Act 2009 -- Role of Solicitor -- Importance of Role -- Forensic Decisions of Counsel -- Comparison with Crown’s resources -- Risk of unfairness -- Application Granted

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Livermore	Office of Public Prosecutions
For the Accused	Mr A. Jackson	Haines and Polites

HIS HONOUR:

Matwali Chaouk is about to stand trial charged with several counts. First, that on 15 November 2009 at Altona North, he attempted to murder Sabet Hadara. Second, and alternatively to the first count, that he recklessly engaged in conduct which endangered the life of Sabet Hadara. And third and fourth, that on the same date and at the same place he recklessly engaged in conduct that endangered the lives of Natalie Camilleri and Antonio Sawan.

The prosecution case is that on 15 November 2009 the accused fired a number of gunshots into a motor vehicle being driven by Natalie Camilleri and in which Sabet Hadara and Antonio Swan were passengers. It is alleged that the accused intercepted the vehicle containing Hadara, Camilleri and Sawan at the intersection of Chambers and Blackshaws Roads in Altona North. He is alleged to have driven a black BMW in front of their vehicle, stopped at an angle and from the driver’s seat pointed a hand gun at Hadara and fired a number of shots which hit the windscreen of the vehicle. Hadara believed the rounds were .22 rounds. The Crown case is that having fired those shots, the accused and a second vehicle containing individuals who are now witnesses in this trial, sped off.

Police first became aware of this incident on 16 November 2009 as result of being contacted by Mr Sawan’s mother. None of the vehicles said to have been involved in the incident were examined by police. Six days after the incident, the windscreen of the vehicle that was allegedly hit by these shots was replaced and the damaged one destroyed. There was no forensic examination of the damaged windscreen.

The issue in the trial which has already been identified is whether the Crown can prove beyond reasonable doubt that, if the incident occurred, it was the accused who fired the shots. The defence response includes in part the following:

…the accused…was not present, did not fire a shot or shots at the nominated vehicle and did not meet (with another vehicle said to have been involved) in a side…

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 Chaouk

Details

AGLC: R v Chaouk [2013] VSC 48
Case: [2013] VSC 48
Decision Date: 15 February 2013

CaseChat Overview and Summary

The case of R v Chaouk involved the applicant, who was facing a criminal trial. The dispute centred around the applicant's application for a temporary stay of proceedings due to the absence of an instructing solicitor for the counsel representing him. The matter was heard in the Supreme Court of Queensland. The applicant contended that the lack of an instructing solicitor, as mandated by the Legal Aid Guidelines, constituted a breach of his right to a fair trial under the common law and section 197 of the Criminal Procedure Act 2009. The trial judge was required to determine whether the absence of an instructing solicitor constituted a ground for a stay under the circumstances.

The primary legal issue the court had to address was whether the absence of an instructing solicitor, despite the availability of a solicitor to assist counsel, warranted a stay of the trial proceedings. The court considered the role of the instructing solicitor in a criminal trial, emphasising the importance of this role in ensuring that the accused's defence is effectively managed and that forensic decisions are properly made. The court also examined the comparison between the resources available to the Crown and the defence, assessing whether the applicant's right to a fair trial was compromised by the lack of an instructing solicitor. The court had to balance these considerations against the potential risk of unfairness to the applicant.

The court found that the absence of an instructing solicitor, as per the Legal Aid Guidelines, did indeed warrant a temporary stay of the proceedings. The trial judge's authority to grant such a stay was grounded in the common law and section 197 of the Criminal Procedure Act 2009, which allows for stays to ensure a fair trial. The court held that the role of the instructing solicitor is crucial in ensuring the accused's defence is effectively managed and that the absence of such a person in this case risked unfairness to the applicant. The court granted the application for a temporary stay, recognising the importance of the instructing solicitor's role and the potential for unfairness in the applicant's trial.

Orders