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Court of Criminal Appeal 25 June 2009

El-Jalkh, Antoine v R

[2009] NSWCCA 139

Drugs

Citation: El-Jalkh, Antoine v R [2009] NSWCCA 139
Court: New South Wales Court of Criminal Appeal
Date: 25 June 2009
Judge(s): Spigelman CJ, James J, Simpson J (all agreeing)

Background

The appellant was convicted in the District Court of conspiring to import into Australia a commercial quantity of MDMA (ecstasy), contrary to the Criminal Code Act 1995 (Cth) and the Customs Act. He was sentenced to 12 years' imprisonment with a non-parole period of seven and a half years. The Crown's case rested heavily on evidence from an alleged co-offender who gave evidence under a pseudonym ("Carlos"), recorded conversations captured by listening devices and telephone intercepts, and supporting evidence from Australian Federal Police and Australian Crime Commission officers.

The appellant gave evidence at trial and denied being a party to the conspiracy. The sole issue for the jury was whether the appellant had participated in the conspiracy, it being common ground that a conspiracy to import MDMA had existed between other named individuals.

On appeal, the appellant argued that the trial judge's summing-up failed to properly put the defence case to the jury, including the appellant's explanations of apparently incriminating statements captured in the recorded conversations.

  • Whether the trial judge's summing-up adequately put the defence case to the jury, in particular the appellant's explanations for apparently incriminating conduct and statements in the recorded conversations
  • Whether, if a failure to put the defence case was established, the proviso to s 6(1) of the Criminal Appeal Act should nevertheless be applied to dismiss the appeal (the proviso allows a court to dismiss an appeal despite an error if no substantial miscarriage of justice has occurred)

Decision

James J (with whom Spigelman CJ and Simpson J agreed) upheld ground 2 of the appeal, finding that the trial judge had failed to put the defence case adequately in the summing-up. The recorded conversations were central to the Crown's case, and one conversation in particular (referred to as "LD 123") was heavily relied upon by the prosecution. The appellant had offered explanations for apparently incriminating remarks made during that conversation, and it was essential for the trial judge to convey those explanations to the jury.

The court found that this obligation was not discharged merely because defence counsel had already addressed the jury on the point, or because the explanations might have seemed obvious or difficult to accept. The requirement to put the defence case in a summing-up is a fundamental obligation of a trial judge in a jury trial, and it was not satisfied here.

On the question of the proviso, the court declined to apply it. Drawing on the High Court's reasoning in Weiss v The Queen (2005) 224 CLR 300 and the Court of Criminal Appeal's decision in Taleb v The Queen [2006] NSWCCA 119, the court held that the failure to put the defence case amounted to a significant denial of procedural fairness. That denial was sufficiently fundamental that it would be inappropriate to apply the proviso even if the appellate court were persuaded of the appellant's guilt. A substantial miscarriage of justice had occurred.

Orders Made

  • Leave under r 4 of the Criminal Appeal Rules granted to argue grounds of appeal 2 and 3
  • Ground 2 upheld
  • Appeal against conviction allowed
  • New trial ordered
  • Application for leave to appeal against sentence not dealt with (rendered unnecessary)

Key Takeaways

  • A trial judge in a jury trial carries a fundamental obligation to put the defence case in the summing-up, including the accused's explanations for apparently incriminating evidence. That obligation is not satisfied by defence counsel having addressed the jury on the same points.
  • The Court of Criminal Appeal confirmed that a failure to put the defence case can constitute a denial of procedural fairness sufficiently serious to warrant quashing a conviction and ordering a new trial.
  • Under s 6(1) of the Criminal Appeal Act, the proviso (which allows an appellate court to dismiss an appeal despite a trial error if no substantial miscarriage of justice occurred) will not be applied where there has been a significant denial of procedural fairness at trial, even if the appellate court is satisfied of the appellant's guilt.
  • Recorded conversations admitted as evidence do not reduce the trial judge's obligation. Where such evidence is central to the Crown case and the accused has offered explanations for what was said, those explanations must be put to the jury in the summing-up.
  • Applying Weiss v The Queen and Taleb v The Queen, the court reinforced that some procedural failures go to the fairness of the trial itself, placing them beyond correction by the proviso.

Legislation and Cases Referenced

Legislation:
- Crimes Act
- Criminal Appeal Act (NSW)
- Criminal Code Act 1995 (Cth)
- Criminal Procedure Act
- Customs Act (since repealed)

Cases:
- Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180
- Cleland v The Queen (1982) 151 CLR 1
- Melbourne v The Queen (1998-1999) 198 CLR 1
- R v Coleman (1990) 19 NSWLR 467
- R v Condon (1995) 83 A Crim R 335
- R v Fuller (1994) 34 NSWLR 233
- R v Gutierrez [2004] NSWCCA 22
- R v Lawrence (1982) AC 510
- R v Meher [2004] NSWCCA 355
- R v Piazza (1997) 94 A Crim R 459
- R v Tillott (1991) 53 A Crim R 46
- R v Zorad (1990) 19 NSWLR 91
- Robinson v The Queen (1991) 180 CLR 531
- Simic v The Queen (1980) 144 CLR 319
- Taleb v The Queen [2006] NSWCCA 119
- Weiss v The Queen (2005) 224 CLR 300