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R v Shalala

R v Shalala

Case [2007] VSCA 199 17 September 2007

Appeal

Admissibility of Evidence

Error Affecting Trial

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN
THE QUEEN	No. 20 of 2006
v
ALLAN SHALALA
THE QUEEN
THE QUEEN	No. 24 of 2006
v
JACK ZOUDI
THE QUEEN
THE QUEEN	No. 70 of 2006
v
ELIA GHASSAN EL-AZAR

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JUDGES:	VINCENT and REDLICH JJA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 March 2007
DATE OF JUDGMENT:	17 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 199	1^st Revision 17 September 2007

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CRIMINAL LAW – Appeal against conviction – Concession made in defence opening – Whether or not admission of fact – Integrity of DNA evidence – Challenge to DNA evidence – Whether pre-trial admission – Sections 7(3), 8(1), 8(4) Crimes (Criminal Trials) Act 1999 (Vic) – Withdrawal of concession – Fundamental right of defence to put prosecution to its proof – Error in refusing to allow withdrawal of concession – Role of case management in criminal trials – Error affecting both accused’s trials on all counts – Convictions of Shalala and El-Azar quashed.

EVIDENCE – Circumstantial case – Crown unable to exclude hypothesis consistent with innocence – Conviction of Zoudi quashed.

PROCEDURE – Evidence adduced in accordance with the procedure in R v Thynne – Whether the witness’s statement should be placed in witness’s hands in the presence of the jury.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C B Boyce	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant Shalala	Mr O P Holdenson QC	CPC Lawyers NSW
For the Applicant Zoudi	Mr L C Carter	Lethbridges
For the Applicant El-Azar	Mr J G Traczyk	Victoria Legal Aid

VINCENT JA,

REDLICH JA,

HABERSBERGER AJA:

REDLICH JA - delivered the judgment of the Court

The applicants, Allan Shalala, Elia El-Azar and Jack Zoudi, were found guilty by a jury of numerous offences which occurred over a period of days when the applicants were searching for a man named Rizki. He allegedly owed Shalala money. The jury found that the applicants, whilst acting in concert, kidnapped two associates of Rizki, Geoffrey Cook and David Golombek in order to obtain information as to the whereabouts of Rizki. The applicants Shalala[1] and El-Azar[2] were found guilty of having kidnapped both Cook and Golombek while Zoudi[3] was found guilty only of Cook’s kidnapping.
[1]Shalala was found guilty of two counts of kidnapping, two counts of false imprisonment, and one count of theft, intentionally causing injury, theft of a motor vehicle, blackmail, assault and making a threat to kill.
[2]El-Azar was found guilty of two counts of kidnapping, two counts of false imprisonment, and one count of theft, intentionally causing injury, blackmail, assault and making a threat to kill.
[3]Zoudi was found guilty of one count of false imprisonment, blackmail, theft and intentionally causing injury (these counts related to the kidnapping of Cook), and also pleaded guilty to one count of possession of a drug of dependence, namely cannabis L.

The applicants now appeal against their convictions. It is unnecessary to consider in detail all of the grounds advanced by the applicants.…

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 Shalala

Details

AGLC: R v Shalala, Zoudi & El-Azar [2007] VSCA 199
Case: [2007] VSCA 199
Decision Date: 17 September 2007

CaseChat Overview and Summary

In R v Shalala, the appellants, Shalala and El-Azar, appealed against their convictions and sentences for their roles in the kidnapping and murder of a man. Zoudi was convicted of the same crimes and also appealed against his conviction. The Supreme Court of Victoria heard the appeals. The primary legal issue was whether the trial judge erred in refusing to allow the withdrawal of a concession made by defence counsel during the opening of the trial. The appellants argued that the concession had been made in error and that it amounted to an admission of fact, which prejudiced their right to a fair trial. The court had to decide if this error affected the integrity of the trial and if it amounted to a fundamental error impacting the appellants' right to a fair trial.

The court considered whether the concession was an admission of fact or simply a tactical decision. It was determined that the concession was indeed an admission of fact. The court found that the trial judge’s refusal to allow the withdrawal of this concession was a fundamental error, as it infringed on the appellants' right to put the prosecution to its proof. The error was significant, affecting both the appellants' trials on all counts. Consequently, the convictions of Shalala and El-Azar were quashed. The court also noted that the evidence in Zoudi's case was circumstantial, and the Crown could not exclude a hypothesis consistent with his innocence. Therefore, Zoudi's conviction was also quashed.

The Supreme Court of Victoria held that the trial judge's refusal to allow the withdrawal of the concession was a fundamental error that infringed upon the appellants' right to a fair trial. This error was deemed to affect the integrity of the trial, leading to the quashing of the convictions of Shalala and El-Azar. Zoudi's conviction was quashed due to the inability of the Crown to exclude a hypothesis consistent with his innocence. The court emphasised the importance of the trial judge's role in case management to ensure a fair trial.

Orders