SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN |
| No. 20 of 2006 |
| v |
| ALLAN SHALALA |
| THE QUEEN |
| No. 24 of 2006 |
| v |
| JACK ZOUDI |
| 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 | 1st 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.…
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- AGLC
- R v Shalala, Zoudi & El-Azar [2007] VSCA 199
- Case
- [2007] VSCA 199
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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