R v El Kholed - [2009] QSC 335

SUPREME COURT OF QUEENSLAND

CITATION:

R v El Kholed [2009] QSC 335

PARTIES:

R
v
MAHIR EL KHOLED
(Defendant)

FILE NO/S:

Indictment No 711 of 2009

DIVISION:

Trial Division

PROCEEDING:

Sentence

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2009

JUDGE:

Wilson J

ORDER:

The defendant is sentenced to 14 months imprisonment with the parole release date fixed at 18 December 2009.

CATCHWORDS:

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – SUPREME COURT – IN RESPECT OF CRIMINAL MATTERS – where defendant pleaded guilty to a charge of contempt of Court in failing to attend at the Supreme Court at Brisbane on 22 April 2009 to give evidence at the trial of R v Dionne Matthew Lacey and Jade Michael Lacey in accordance with a subpoena served on him on 30 March 2009 – appropriate sentence in circumstances

AG v Leveller Magazine Ltd [1979] AC 440, cited

Freeman [1998] QCA 462, considered
Garland (1997) 95 A Crim R 264, considered

WLP [2005] 158 A Crim R 151, considered

COUNSEL:

M R Byrne for the Crown

C Eberhardt for the Defendant

SOLICITORS:

Director of Public Prosecutions (Qld) for the Crown

Robertson O’Gorman Solicitors for the Defendant

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

WILSON J

THE QUEEN

MAHIR EL KHOLED

BRISBANE

..DATE 20/10/2009

SENTENCE

HER HONOUR: Mahir El Kholed has pleaded guilty to a charge of

contempt of Court in failing to attend at the Supreme Court at

Brisbane on 22 April 2009 to give evidence at the trial of

R. v. Dionne Matthew Lacey and Jade Michael Lacey in

accordance with a subpoena served on him on 30 March 2009.

Mr El Kholed was arrested in New South Wales on 20 June 2009.

He was extradited to Queensland on 24 June 2009 and has been

remanded in custody since then. He is also on remand for

other unrelated matters.

The gravamen of contempt of Court is interference with the due

administration of justice. (See AG v. Leveller Magazine Ltd

[1979] AC 440 at 449 per Lord Diplock.)

A subpoena is an order of the Court requiring the person to

whom it is addressed to attend before the Court and give

evidence. Deliberate non-compliance with a subpoena flouts

the authority of the Court.

Mr El Kholed's failure to attend Court to give evidence as

required by the subpoena not only affected the conduct, and

potentially the outcome, of a murder trial; it also had the

effect, or the potential effect, of eroding public confidence

in the criminal justice system.

These are very serious matters.

On 6 May 2007 Kevin Palmer died as a result of a gunshot wound

to the chest.

The brothers Jade and Dionne Lacey were charged with wounding

with intent to maim and murder. Their trial began on 16 April

2009 and lasted 14 days. On 6 May 2009 Jade Lacey was found

guilty of wounding with intent to…

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 El Kholed

Details

AGLC: R v El Kholed [2009] QSC 335
Case: [2009] QSC 335
Decision Date: 20 October 2009

CaseChat Overview and Summary

In the case of R v El Kholed, the defendant was charged with contempt of court for failing to comply with a subpoena served on him on 30 March 2009. The subpoena required him to attend at the Supreme Court at Brisbane on 22 April 2009 to give evidence at the trial of R v Dionne Matthew Lacey and Jade Michael Lacey. The defendant pleaded guilty to the charge of contempt of court, and the court was required to determine an appropriate sentence.

The court had to consider the nature of the contempt and the circumstances in which it occurred. The contempt involved a direct refusal to comply with a lawful order of the court, which is a serious matter. The court also had to weigh the defendant's conduct against the need to maintain the integrity and authority of the court. In determining the appropriate sentence, the court considered the defendant's criminal history, his failure to comply with the subpoena despite being aware of its requirements, and the potential impact of his non-compliance on the trial.

The court found that the defendant's conduct was a serious breach of the court's authority and warranted a significant punishment. The court sentenced the defendant to 14 months imprisonment, with the parole release date fixed at 18 December 2009. This sentence reflected the seriousness of the contempt and the need to deter similar conduct in the future. The court's decision underscores the importance of obeying court orders and the consequences of failing to do so.

Orders

Orders of the court

The defendant is sentenced to 14 months imprisonment with the parole release date fixed at 18 December 2009.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v El Kholed [2009] QSC 335
PARTIES:	R v MAHIR EL KHOLED (Defendant)
FILE NO/S:	Indictment No 711 of 2009
DIVISION:	Trial Division
PROCEEDING:	Sentence
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	20 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2009
JUDGE:	Wilson J
ORDER:	The defendant is sentenced to 14 months imprisonment with the parole release date fixed at 18 December 2009.
CATCHWORDS:	PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – SUPREME COURT – IN RESPECT OF CRIMINAL MATTERS – where defendant pleaded guilty to a charge of contempt of Court in failing to attend at the Supreme Court at Brisbane on 22 April 2009 to give evidence at the trial of R v Dionne Matthew Lacey and Jade Michael Lacey in accordance with a subpoena served on him on 30 March 2009 – appropriate sentence in circumstances AG v Leveller Magazine Ltd [1979] AC 440, cited Freeman [1998] QCA 462, considered Garland (1997) 95 A Crim R 264, considered WLP [2005] 158 A Crim R 151, considered
COUNSEL:	M R Byrne for the Crown C Eberhardt for the Defendant
SOLICITORS:	Director of Public Prosecutions (Qld) for the Crown Robertson O’Gorman Solicitors for the Defendant