R v El Kholed[2009] QSC 335

SUPREME COURT OF QUEENSLAND

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

WILSON J

THE QUEEN

v.

MAHIR EL KHOLED

BRISBANE 

..DATE 20/10/2009

SENTENCE

HER HONOUR:  Mahir El Kholed has pleaded guilty to a charge of contempt of Court in failing to attend at the Supreme Court at Brisbane on 22 April 2009 to give evidence at the trial of  R. v. Dionne Matthew Lacey and Jade Michael Lacey in accordance with a subpoena served on him on 30 March 2009.

Mr El Kholed was arrested in New South Wales on 20 June 2009. He was extradited to Queensland on 24 June 2009 and has been remanded in custody since then.  He is also on remand for other unrelated matters.

The gravamen of contempt of Court is interference with the due administration of justice.  (See AG v. Leveller Magazine Ltd [1979] AC 440 at 449 per Lord Diplock.)

A subpoena is an order of the Court requiring the person to whom it is addressed to attend before the Court and give evidence.  Deliberate non-compliance with a subpoena flouts the authority of the Court.

Mr El Kholed's failure to attend Court to give evidence as required by the subpoena not only affected the conduct, and potentially the outcome, of a murder trial; it also had the effect, or the potential effect, of eroding public confidence in the criminal justice system.

These are very serious matters.

On 6 May 2007 Kevin Palmer died as a result of a gunshot wound to the chest.

The brothers Jade and Dionne Lacey were charged with wounding with intent to maim and murder.  Their trial began on 16 April 2009 and lasted 14 days.  On 6 May 2009 Jade Lacey was found guilty of wounding with intent to maim, and Dionne Lacey was found guilty of manslaughter.  Their convictions were subsequently upheld by the Court of Appeal.  There are applications before the High Court for special leave to appeal - by Jade Lacey against conviction and sentence and by Dionne Lacey against sentence.

The incident in which Palmer was killed occurred in a unit in a townhouse complex at Nerang.  A group of people, including El Kholed and Kusdemir, had gathered in the unit, intending to go to Brisbane to attend a party.  The Lacey brothers arrived, each armed with a handgun.  Kusdemir and Jade Lacey went outside.  There was a verbal argument between El Kholed and Dionne Lacey, apparently over the way El Kholed was looking at Dionne Lacey.

Dionne Lacey went to the front door, where Jade Lacey was speaking with Kusdemir.  Jade Lacey went back into the unit and spoke to those present.  He was verbally challenged by Palmer, who was unarmed.  In the course of the ensuing altercation, Jade Lacey deliberately shot Palmer once in the legs.  Very shortly after that, Dionne Lacey shot Palmer in the chest.

The issues at the trial included -

(a)whether Palmer was armed with a shotgun at or shortly before the time the first shot was fired;

(b)the respective positions of Jade Lacey, Dionne Lacey and Palmer when each shot was fired;

(c)whether there was a gun fired at or towards any of the occupants of the unit (other than the Laceys) in the course of the later altercation;

(d)whether El Kholed was carrying a handgun shortly after the shots were fired by the Laceys, and

(e)whether the firing of the second shot was accidental.

At the trial the Laceys made formal admissions -

(a)that the first shot was fired by Jade Lacey deliberately into Palmer's leg or legs, and

(b)that the second shot occurred whilst Dionne Lacey was holding the relevant firearm, and that it was that shot which caused the fatal injuries.

Jade Lacey gave evidence, but Dionne Lacey did not.

Jade Lacey's evidence raised the issue of accident in relation to the second shot.  Because of where El Kholed was standing when the shots were fired, it was expected that he could give evidence of where the Laceys were standing.  This was relevant to the issue of accident.

Whether there was a third shot was tied into an issue of self-defence.  During the trial witnesses were cross-examined to the effect that someone wearing clothing similar to that worn by El Kholed was seen outside the unit holding a gun.  El Kholed was expected to deny this.

The prosecutor opened El Kholed's evidence to the jury. When he did not attend in answer to the subpoena, the jury was informed that he had absconded.

In the present sentence proceeding, the prosecutor fairly acknowledged that the Laceys' making these formal admissions at their trial had made much, but not all, of the evidence expected to be given by El Kholed less important than it otherwise might have been.

This bears on the adverse consequences of El Kholed's non-attendance on the conduct of the Lacey trial - which is a factor to be considered in determining what is a proper penalty for his contempt.

Mr El Kholed was born in Brisbane on 15 August 1984.  He is one of eight children of a Lebanese Australian family.  They are practising Muslims.  His parents separated early this year (before the Lacey trial) after long-standing marital conflict.

Mr El Kholed completed year 12 at school, undertaking a non-academic program.  Then he started a TAFE course in international business, but he dropped out of it and instead did two years of a carpentry apprenticeship.  Then he worked in a number of fruit shops with his father and other relatives.

At the age of 18 he entered an arranged marriage, which did not last long.  His wife became pregnant before they separated, and subsequently gave birth to a child with whom he has had little contact.  He has been in a stable relationship with a young woman for the last five years, and they plan to marry.

Mr El Kholed used ecstasy for about a month after his marriage ended.  He used anabolic steroids at some stage, but there is no evidence that he did so for a protracted period.  He smoked about two joints of cannabis a week.

Mr El Kholed has a criminal history of offences which have been dealt with in Magistrates Courts.  They include possessing dangerous drugs, possession of tainted property and assault occasioning bodily harm whilst armed.  He has not previously been imprisoned.  At the time of his contempt he had not long completed the 12 month operational period of the suspended sentence imposed for the assault occasioning bodily harm.  His criminal history includes six bail offences, the most recent committed on 9 August 2007.

In February 2007 (before the killing of Kevin Palmer) Mr El Kholed was referred to a personal support program at Centacare, Southport by a Centrelink psychologist.

Mr El Kholed appeared as a witness at investigative hearings conducted by the CMC on 23 May 2007 and 18 September 2007.  On 18 February 2008 he gave evidence at the Lacey brothers' committal.

Following the killing of Kevin Palmer he developed problems with post-traumatic stress and anxiety.  He became dependent on Valium (for which he obtained prescriptions from more than one medical practice) and cannabis.

From May 2007 Mr El Kholed sought counselling and other assistance for post-traumatic stress disorder and anxiety. His symptoms escalated when he was required to give evidence, and they seemed to settle down in the second half of 2008.  He commenced a TAFE course in youth counselling.

On 30 March 2009 police met him at IKEA at Springwood.  They served him with the subpoena to give evidence at the Lacey trial.  He was told he would need to attend a pre-trial conference with the Crown prosecutor.  He made various demands for the payment of money and other action to be taken before he would testify - including the payment of at least $50,000 in cash for himself and another witness, the payment of at least $5,000 cash or alternatively a new car and the release of an associate who had recently been arrested and re faced bail.  Because he said he would have to "look over his shoulder" if he testified, offers were made for his protection, but he refused them.

On 8 April 2009 Mr El Kholed obtained another prescription for Valium.  A day or two later he telephoned Princess Alexandra Hospital seeking assistance, and then he presented at the emergency department of the hospital where he was assessed and stayed overnight.  According to the hospital notes, he had a full range of symptoms of PTSD.  He was highly anxious and fearful he would be killed if he gave evidence.  He expressed suicidal ideation.  He referred to his heavy reliance on cannabis and continually requested Valium, which was prescribed.  He was mistrustful of police and the DPP.

The hospital contacted the prosecutor and expressed concerns for his mental health.  The hospital's concern was quite properly relayed to the Laceys' legal representatives.

On 14 April 2009 Mr El Kholed met Ken Lacey, the father of Dionne and Jade Lacey.  Mr Lacey lived on the Gold Coast, but he was rumoured to be a prominent figure in the Melbourne underworld.  There had been media reports that he had links to motorcycle gangs and that he had arranged for his sons to have "protection" in gaol.  He had two tattoos on his neck - "revenge" and "respect".  In the course of that meeting Mr El Kholed learnt that the Laceys were aware of his mental health problems, which seemed to upset him greatly.

The next day police officers met Mr El Kholed at Yatala Pies, at his request.  They took him to the offices of the DPP.  On the way there, he said he had no money and again asked police to buy him a car or make some kind of payment.  When told this was not going to happen, he asked for a paid holiday where he could lie on the beach and forget all about it.  At that point he almost broke down in tears.  According to one of the police officers, his moods appeared to fluctuate between contrition and anger.

A pre-trial conference with officers of the DPP followed. After the conference, police arranged for protective measures for the security of Mr El Kholed.  Accommodation was arranged at a motel, but considering this inadequate, he absented himself from it the next day.

On the evening of 17 April 2009 Mr El Kholed met with police. Again, he said he had no money.  In the course of general conversation he asked several times how important he was to the prosecution case, and said words to the effect, "Yeah, but I'm the one that will sink them; I'm the most important witness against them because of where I was sitting and what I saw; I'm the one that will do them the most damage."  He was told he would be required to testify on Wednesday, 22 April 2009, and replied with words to the effect, "Youse can stop panicking; I'm going to show up; I always was."  Arrangements were made for his transportation to the Court.

On the morning of Saturday, 18 April 2009, two men attended the Flight Centre outlet at Cannon Hill and inquired on behalf of a friend (Mr El Kholed) about the first available flight to Beirut.  They made a tentative booking on a flight scheduled to leave Brisbane at 2.45 a.m. on Monday, 20 April 2009 bound for Beirut via Dubai, and a return flight scheduled to arrive in Sydney at 7.45 a.m. on 22 June 2009.  Later that morning Mr El Kholed confirmed the booking and paid the $1,567 fare in cash he had borrowed from his father.  At the time he inquired what would happen if he failed to catch the flight, and was informed he would forfeit the fare.  He inquired about an earlier flight, but could not afford the extra cost.  He inquired whether he could change the return flight.

Mr El Kholed left Brisbane as planned on 20 April 2009.  He returned to Sydney two days earlier than originally planned, arriving on 20 June 2009.  He was arrested at Sydney International Airport.

Mr El Kholed was assessed by Mr Peter Jordan, a clinical psychologist, on 7 October 2009 at the Arthur Gorrie Correctional Centre.  In Mr Jordan's opinion, he was still suffering the full range of symptoms of PTSD.  He said:

"He is in need of psychological/psychiatric treatment.  In my view, he has been inappropriately treated in the past.  He should not have been treated through the use of sedatives.  He should have been in receipt of ongoing psychological treatment in conjunction with appropriate antidepressant medication.  He was clearly abusing sedative medication and this is always a risk when this type of medication is prescribed for post-traumatic stress disorder.  Substance abuse/dependency is a common morbid condition with PTSD, particularly when it is inappropriately treated.  To be fair to the staff at the hospital, I note that he was offered antidepressant medication but he declined it.

It is my opinion that Mr El Kholed's judgment would have been very clouded by his heightened levels of anxiety, post-traumatic stress symptomatology and substance/prescription medication abuse.  His decision not to appear at the trial is very likely to have been based on a genuine fear that he would be harmed if he gave evidence.  He was not assisted in overcoming his fear by associates who appear to have reinforced it."

Counsel for Mr El Kholed submitted that his client's conduct in not giving evidence at the Lacey trial was the product of his irrational fear of the Laceys, in particular Ken Lacey, and his inability to cope.  His client was only 23 years old when he witnessed the fatal shooting of Kevin Palmer.  He had been traumatised by this horrific experience, and then he had been forced to relive it on several occasions in giving evidence.  He perceived that he would expose himself to retribution if he gave evidence at the trial.  He submitted that the demands for money and other benefits were the irrational ramblings of a person suffering from post-traumatic stress and possibly affected by Valium and/or cannabis.  He sought to downplay the significance of the history of bail offences by pointing out that two of them involved not signing in as required as opposed to non-appearance and that he had appeared at the CMC and the committal since the last of them.

While acknowledging Mr El Kholed's mental health problems, the prosecutor submitted that his conduct nevertheless reflected disrespect for the processes of the law.  He discriminated between extravagant demands for $50,000 and a paid beach holiday (which he "put in the extravagant and silly basket") on the one hand and the demand this his friend be released on bail (which he submitted showed the deliberateness of his conduct) on the other.  He pointed to the six convictions for bail offences as indicative of his disrespect for the processes of the law.  And he submitted that Mr El Kholed's conduct in himself approaching Ken Lacey was inconsistent with his professed fears.

I am satisfied on the balance of probabilities that Mr El Kholed left the country on 20 April 2009 deliberately to avoid giving evidence at the Lacey trial.  He did so conscious that the law required him to comply with the subpoena.  His fear of the Laceys and his feeling of inability to cope afford some explanation for his conduct, but are no excuse for it.  He acted in blatant and calculated disregard for his legal obligations.

The prosecutor submitted that a head sentence in the range of two to two and a half years with a non-parole period of nine months would be appropriate.  He submitted that because the time spent on remand cannot be declared time already served under the sentence, a period of four months should be deducted from both the head sentence and the non-parole period.

Defence counsel submitted that in all the circumstances the penalty should be nine months' imprisonment with immediate release on parole.  That would be equivalent to a head sentence of 13 months with a non-parole period of four months, and have the advantage of placing him immediately on nine months' parole, during which he would presumably receive the treatment recommended by Mr Jordan.

No truly comparable decision has been placed before the Court. There is no defined maximum penalty for contempt of Court.

Garland (1997) 95 A Crim R 264 (Supreme Court of Queensland, White J) was a case of someone who was expected to be a key witness at a murder trial refusing to be sworn and give evidence.  An inmate of a prison was killed by four other prisoners.  Garland, who was also an inmate, gave a statement to police the next day.  He was subsequently granted parole, but rearrested and returned to custody before the trial.  The new charges against him were very serious, and he could expect to receive a long sentence if he were convicted.  Concerned at threats to Garland's safety, prison authorities placed him in protective custody.  Garland said he refused to take the oath and give evidence because he feared for his own life and that of his family.  White J found that the threats to Garland fell short of duress within section 31(1)(d) of the Criminal Code. Her Honour observed that Garland's refusal to take the oath and to give evidence constituted a grave undermining of the administration of justice.  She was mindful of the potential serious adverse consequences to Garland and his family if he did give evidence.  She imposed a sentence of nine months' imprisonment cumulative on the sentence being served. (Presumably his parole had been cancelled when he was rearrested, and he was then required to serve the balance of the term he had been serving at the time of the murder.)

Freeman [1998] QCA 462 was an application for leave to appeal against the sentence imposed for contempt of Court in refusing to take the oath and testify at an arson trial.  Freeman, a 22 year old with "an imposing criminal history", had already been sentenced for his participation in the offence.  He was called by the Crown to give evidence against a co-accused whom he had implicated.  He refused to be sworn and testify for two apparently inconsistent reasons - that he did not wish to participate in the conviction of an innocent person and, "Because I don't work for police or prosecution.  I'm not a maggot."  He was sentenced to nine months cumulative upon previous sentences, and the parole eligibility date was delayed by nine months.  The Court of Appeal dismissed the application for leave to appeal against sentence.  Pincus JA said:

"It seems to me that the principal reason for imposing a substantial sentence, as was done in the present case, is to discourage other persons similarly minded; that is, if it becomes known that a refusal to cooperate in prosecution to the extent of giving truthful evidence against co-offenders can be dangerous, this may encourage people to decline to take refuge in either of the suggestions which the applicant made, that is that he was unwilling to participate in the prosecution of an innocent person, or that he was not, as he put it, a 'maggot'.

The element of deterrence looms fairly large in a case of this sort.  There was a plain case of refusal to give evidence at a trial where the evidence was critical and the trial was in relation to a serious matter.  Nine months' imprisonment for that does not seem to me to be an excessive punishment."

I respectfully adopt what his Honour said about the importance of general deterrence in sentencing for contempt of Court.

WLP [2005] 158 A Crim R 151 was an application for leave to appeal against a sentence for perjury - two years' imprisonment suspended after six months with an operational period of two years.  The maximum penalty that might have been imposed was seven years' imprisonment.  At the time of the perjury the applicant was aged 17.  He pleaded guilty.  The Court of Appeal dismissed the application, observing that perjury attacks the very heart of the criminal justice system.

The gravity of Mr El Kholed's contempt is broadly comparable to that of Garland.  It is in his favour that he consented to extradition from New South Wales and pleaded guilty to the contempt.  Further, through his counsel, he apologised to the Court for his conduct.  His criminal history is not long; nor is it as serious as that of Garland, who seems to have been an older man.  And Garland does not seem to have suffered mental health problems.  Of course, the nine months' imprisonment imposed on Garland was cumulative on the sentence being served.

In all the circumstances of the present case, I think that the starting point should be a head sentence of 18 months'  imprisonment with a non-parole period of one-third of that. Having regard to the 118 days spent on remand (which cannot be  declared time already served under the sentence), the head sentence should be reduced to 14 months, and there should be release on parole after about two months from today.

Mahir El Kholed, I sentence you to 14 months' imprisonment.  I fix your parole release date as 18 December 2009.