The Queen v Allouche[1998] QCA 216

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No. 146 of 1998

Brisbane

[R v. Allouche]

THE QUEEN

v.

MOHAMMED HAISAM ALLOUCHE

 Appellant

de Jersey CJ

Thomas J

Derrington J

Judgment delivered 28 July 1998

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS: CRIMINAL LAW - whether miscarriage of justice - whether real risk prosecutor’s closing address “wrongly influenced the verdict” - whether direction of trial judge rectified situation - failure of defence counsel to seek discharge of jury - accused convicted of doing grievous bodily harm in nightclub brawl

Counsel:  Mr A. Glynn SC, with him Mr P. Wilson for the appellant

Mr P. Rutledge for the respondent

Solicitors:  Mr N.R. Barbi for the appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 22 July 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28 July 1998

The appellant was convicted of doing grievous bodily harm to one Timothy Malivoire on 24 August 1997.   The Crown case was that while at a nightclub, and with a glass in his hand, the appellant struck the complainant in the face with that hand, and the glass broke on impact, cutting the complainant’s face causing residual scarring and nerve damage.  The ground of appeal is that because of the prosecutor’s closing address to the jury, there was a miscarriage of justice.  The appellant contends that the prosecutor exceeded the bounds of proper comment to the point where the resultant position could not be rectified by the learned trial judge’s direction.

The Court’s approach to such cases emerges from Pernich (1991) 55 A.Crim.R 464,

R v. M [1991] 2 Qd.R. 68 and R v. Hay and Lindsay [1968] Qd.R. 459.  Where a prosecutor has transgressed beyond the limits of reasonable comment, the issue for this Court is whether or not it is nevertheless satisfied “that there is no real risk that the prosecutor’s remarks wrongly influenced the verdict”; if there is no such risk, the Court will conclude that the trial was not relevantly unfair.  See Pernich 466 per Ryan J and R v. M page 80.  The nature of any objectionable remarks, the strength of the Crown case, the extent of any attention by the trial judge to rectifying  the matter, and whether or not the defence sought the discharge of the jury, are all relevant considerations.

It is convenient to look at once to the nature of the Crown case.  The complainant gave evidence that as he was leaving the nightclub, in the early morning, he tripped and fell onto a female, Ms Noonan.  She pushed him, and he retaliated, and then he was struck in the face.  That was the striking by the appellant.  Other persons present gave evidence for the defence, as did the appellant himself, and needless to say there was divergence in the accounts.

The defences of accident and aiding the defence of another were left to the jury, but as the case was conducted by the defence and explained by the learned judge to the jury in his summing-up, its primary thrust was a contention that the appellant did not, when striking the complainant, know that the glass was in his hand, so that the Crown had not established that it was a willed act.  The jury must, of course, be taken to have found that the Crown had established beyond reasonable doubt that the appellant did know of the presence of the glass in his hand at the time.  In reaching that conclusion, the jury may well have been influenced by the appellant’s subsequent statements to various persons, to which we will now refer, in the context of an acknowledgement that that particular defence was, by nature, not especially appealing.

The appellant cut himself in the incident.  When seeking treatment for himself, he told a nurse that he had fallen over and cut himself.  At the trial he admitted that he had thereby lied.  He also admitted lying to the police, insofar as he had told them that he could remember nothing about the incident.  The jury was properly instructed as to the treatment of lies.  Because it featured in the Crown submissions on the appeal, we mention also that the appellant told a doctor at the hospital that “his friend’s girl friend got attacked by another guy ...  he had a glass in his hand and hit the guy and lacerated his (the appellant’s) hand”: this would presumably, however,  have been interpreted as amounting to no more than an acknowledgement, subsequently, of what must have happened. 

As we have said, the issue of substance was whether the striking with the glass was a willed act.  An important consideration was the credibility of the appellant.  He claimed it was not, that acting on the spur of the moment, he completely overlooked the circumstance that there was a glass in his hand.  In these circumstances those lies may have assumed some significance in the jury’s assessment - although not necessarily major, because, allowing for an unsurprising reaction from someone informed that he had brought about this injury to the complainant, the statements may well have been referable more to panic than a true realisation that, as he knew at the time, he struck with the glass.

Mr Glynn SC, who appeared for the appellant, referred to a number of features in support of his submission that the case was, in the end, finely balanced.  They included the speed of the appellant’s retaliation, the absence of prior ill-will between the appellant and the complainant, and the force of the blow.  These features arguably bore on the likelihood of the appellant’s claim to have been unaware of the glass.

But overall, allowing especially for the features mentioned earlier, this was not a particularly finely balanced case: there was some arguable strength about the prosecution’s position. 

We turn now to the particular remarks by the prosecutor complained of in support of the ground of appeal.  (The last particular was abandoned.)  Those which were pursued are in these terms:

“(i) The prosecutor told the jury that there was a conspiracy on the left hand side of the bar table.

2. The prosecutor told the jury that Richard Kaddour, a witness for the defence, had seen police statements when there was no evidence of that fact.

3. The prosecutor told the jury that the accused and his defence witness, Kaddour, had conspired by putting their heads together and recently invented their evidence without putting that proposition to either the accused or the witness, Kaddour, when those persons were giving their evidence.

4. The prosecutor told the jury that the defence, in making formal admissions, was attempting to keep the gory details of the matter form the jury.”

As to (i), the prosecutor, when challenged in the presence of the jury, did not squarely concede that he used the word “conspiracy”, but went on to say that his intention had been to convey that the defence was using all its advocacy skill to present a view of the matter which in the end stretched the imagination of the jury.  The learned trial judge characterised the prosecutor’s remark, with the agreement of defence counsel and in the presence of the jury, as a mere “rhetorical flourish”.

As to (ii), when challenged, the prosecutor conceded that he had been mistaken about this, and withdrew the assertion.  This also occurred before the jury.

As to (iii), it is true that the prosecutor did not put to the appellant or to Kaddour, the specific allegation of a dishonest conspiracy between them to give false evidence.   He did go so far as to put to Kaddour that Kaddour gave the police a version different from that given in evidence, that he had refused to give a statement to the police until after he had had a conference with the appellant’s solicitors, and that he had himself previously been convicted of theft.  Indeed, the prosecutor challenged the honesty of both Kaddour and the appellant, and the jury may perhaps have inferred that he was suggesting that Kaddour and the appellant had got together to present an untruthful account.  But that aside, any such possibility should certainly not have been left for mere inference in that way.  As the learned judge correctly pointed out to the jury, the prosecutor should have put any suggestion of conspiracy clearly to the witnesses, if that contention were to be pursued.

As to (iv), this was the subject of strong correction by the learned judge. 

In the course of the prosecutor’s address, the judge referred to the suggestion of conspiracy, and the reference to the making of admissions to obviate the need for graphic evidence.  The judge described the prosecutor’s approach as objectionable, as a case of his having overstepped the proper bounds, with no blameworthy conduct at all on the part of the defence.  The judge made these points before the jury.   He gave the jury a strong direction contrary to the prosecutor’s contentions, urging an unemotional, clinical assessment of the evidence.  He instructed the jury clearly and forcefully to disregard those submissions by the prosecutor.  Later, when delivering his summing-up, he reverted to some of these matters.

Mr Glynn rightly conceded that the learned judge apparently did his utmost to rectify the matter, that he responded to the problem accurately and substantially.  He submitted, however, that the inevitable overall effect of the prosecutor’s transgressions, notwithstanding the judge’s correction, was to render the trial unfair.

Before dealing with that, we observe that it was most undesirable that the prosecutor should have made these statements and conducted himself in this way, both inaccurately and with undue exaggeration.  It tainted the Crown presentation.  Conduct of this character on the part of a prosecutor may give rise to a real risk of injustice, and raise - as has occurred here - the possibility of a contention that a verdict of guilty should not stand.  The Court deprecates conduct of this character on the part of a prosecutor.  But that this sort of inexcusable conduct did occur does not necessarily render the conviction unsound.

Significantly, defence counsel did not seek the discharge of the jury.  That is of significance in view of the appellant’s current submission, which is that the prosecutor “poisoned” the atmosphere of the trial to the extent that a fair trial was not possible.  Defence counsel’s approach is noteworthy notwithstanding that his experience of criminal jury trials was, to that point, somewhat limited.  The need to ensure that a trial proceeds fairly, and to consider the possible discharge of a jury where that arguably does not happen, are very well known considerations appreciated by trial counsel of any experience.

While even a strong direction from a trial judge may not necessarily be adequate to rectify a situation like this, and while the failure of the defence to seek the discharge of the jury will likewise not necessarily deny an accused, on appeal, a subsequent right to challenge a conviction on such a ground, those features do here, taken with the apparent quality of the Crown case, persuade us that there was no real risk that the prosecutor’s relevant remarks “wrongly influenced the verdict”.

In summary, the prosecution case was not “finely balanced”, but had some strength.   The learned judge corrected the Crown prosecutor at an early stage, and directed the jury in very strong terms to ignore his objectionable submissions.  That defence counsel saw no significant residual risk is corroborated in this case by his failure to seek the discharge of the jury.   One also infers that the trial judge himself felt that the trial could safely proceed, because he did not advert to the possibility of any real risk in his exchanges with counsel. 

In these circumstances, it follows that the conviction must stand.  The appeal is dismissed.