Citation: El Khouli v R [2019] NSWCCA 204
Court: Court of Criminal Appeal, NSW
Date: 28 August 2019
Judges: Leeming JA (leading judgment); Garling J and Wright J (agreeing)
Background
The appellant was convicted following a 25-day District Court trial of three offences: dishonestly damaging property by fire with a view to making a financial gain (contrary to s 197(1)(b) of the Crimes Act 1900 (NSW)), and two counts of doing acts intended to pervert the course of justice (contrary to s 319). The convictions arose from a fire in the early hours of 3 October 2012 that substantially destroyed a café/restaurant in Hornsby, known as "My Sophia", which operated under the co-accused's name and was the subject of an insurance policy.
The Crown's case was that the appellant and his business associate entered a joint criminal enterprise to burn the premises for the insurance payout. The co-accused suffered severe burns to his face and hands and was hospitalised for three weeks. The perverting justice offences related to the appellant coaching two witnesses, his de facto partner and the co-accused's wife, to give false accounts to police about the co-accused's whereabouts on the night of the fire.
The jury returned guilty verdicts in December 2016. The appellant was sentenced to an aggregate term of 8.5 years with a non-parole period of 5.5 years. He filed a late application for leave to appeal against both conviction and sentence in March 2019, with the Crown not opposing the extension of time but contending the grounds lacked merit.
Legal Issues
- Whether the jury's verdicts were unreasonable or unsupported by the evidence, specifically regarding:
- The absence of direct evidence placing the appellant at the scene of the fire
- The paucity of evidence as to the cause and origin of the fire
- The lack of evidence of a joint criminal enterprise
- The lack of evidence of financial gain accruing to the appellant
- Whether the trial judge failed to comply with s 18 of the Evidence Act 1995 (NSW) by not ensuring the appellant's de facto partner understood her right to object to giving evidence against him
- Whether deficiencies in jury directions gave rise to a miscarriage of justice
- Whether leave should be granted to raise matters not argued at trial
- Whether the sentence was manifestly excessive or infringed the principles of parity and totality
Decision
Unreasonable verdict (Ground 1): Leeming JA examined the circumstantial evidence in detail, including internet searches on the de facto partner's phone in the early hours of 3 October 2012 for burn treatment information, the co-accused's presence at the appellant's home despite contrary police statements, and the evidence of both witnesses that they had lied to police at the appellant's direction. The Court found the jury's verdicts were open on that evidence and could not be characterised as unreasonable.
Section 18 Evidence Act (Ground 2): Section 18 of the Evidence Act 1995 requires a court to inform a compellable witness who is a close associate of the defendant of their right to object to giving evidence. The appellant argued the trial judge had not adequately satisfied this obligation in respect of the de facto partner. The Court concluded no error was established on this ground. The de facto partner had in fact given evidence, and the Court was not persuaded that any procedural shortcoming in the s 18 process resulted in a miscarriage of justice.
Jury directions (Ground 3): Leave was refused on the jury direction grounds because the relevant arguments had not been raised at trial. The Court applied the established principle that leave to raise new grounds not argued below will not readily be granted, particularly where no proper basis for departure from that rule was demonstrated.
Sentence (Ground 4): The Court granted leave to appeal the sentence but dismissed the ground. The appellant contended the aggregate sentence of 8.5 years offended the totality principle, pointing to what he said was insufficient concurrency between the three counts. The Court noted the primary judge expressly addressed totality. It also observed that, under the aggregate sentencing regime, specifying the precise degree of accumulation between indicative sentences is not required and would in fact cut across the rationale for that sentencing procedure, as confirmed in ZA v R [2017] NSWCCA 132.
Orders Made
- Time to appeal extended to 8 March 2019
- Leave to appeal granted, confined to Grounds 1 and 4; leave otherwise refused
- Appeals against both conviction and sentence dismissed
Key Takeaways
- Circumstantial evidence, including phone records, internet search histories, and witness recantations, can be sufficient to support a conviction for arson and perverting justice even where there is no direct evidence placing the accused at the scene.
- Under s 18 of the Evidence Act 1995 (NSW), a court must ensure that a witness who is a close associate of the accused is aware of their right to object to giving evidence; however, a failure to do so will not automatically result in a miscarriage of justice.
- The Court of Criminal Appeal reaffirmed that leave to argue grounds not raised at trial will generally be refused where no adequate justification for the departure is shown.
- In dismissing the sentence appeal, the Court confirmed that aggregate sentencing does not require a judge to specify the precise degree of accumulation or concurrency among indicative sentences, consistent with the principles in ZA v R.
- A co-accused receiving a lower sentence (4 years with a 2-year non-parole period) does not automatically render a higher sentence for the other accused excessive, particularly where the two trials proceeded separately and the evidence and roles differed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 197, 319
- Criminal Appeal Act 1912 (NSW), ss 5, 5F
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), s 18
Cases:
- ZA v R [2017] NSWCCA 132; 267 A Crim R 105
- Greenhalgh v R [2017] NSWCCA 94
- Kresovic v R [2018] NSWCCA 37
- Mulvihill v R [2016] NSWCCA 259
- Owen v R [2017] NSWCCA 54