Abbas v The King - [2025] NSWDC 218

District Court

New South Wales

Medium Neutral Citation: Abbas v R [2025] NSWDC 218
Hearing dates: 12 May 2025
Date of orders: 12 May 2025
Decision date: 12 May 2025
Jurisdiction: Criminal
Before: Bennett SC ADCJ
Decision:
Appeal from Conviction Dismissed.
Sentence Appeal allowed.
Conviction is set aside and pursuant to s10(1)(a) Crimes (Sentencing Procedure) Act without proceeding to conviction the charge is dismissed.

Catchwords:
CRIMINAL LAW - Conviction Appeal - Sentence Appeal - Possession of a knife (not a prohibited weapon) in Court premises – Dominion and control over the knife – Mental intent for possession

Legislation Cited:
Court Security Act 2005.
Crimes (Sentencing Procedure) Act 1999.
Crimes Act 1900.
Supreme Court Act 1970

Cases Cited:
He Kaw Teh v The Queen[1985] HCA 43.
Lunney v DPP [2021] NSWCA 186.
Police v Peter Melbourne Kennedy (1998) 71 SASR 175.
Proudman v Dayman [1941] HCA 28.
R v Martindale.[1986] 1 WLR 1042.
Sherras v De Rutzen [95] 1 QB 918

Texts Cited:
Cambridge Dictionary
Oxford Languages

Category: Principal judgment
Parties: Appellant: Ali Abbas.
Respondent: Director of Public Prosecutions (NSW)
Representation: Counsel:
Greg James QC: Appellant
Solicitors:
One Group Legal : Appellant
Officer of the Director of Public Prosecutions (NSW): Crown Respondent

File Number(s): 2024/00007657
Decision under appeal

Court or tribunal:

Local Court, The Downing Centre

Jurisdiction:

Criminal

Date of Decision:

30 October 2024

Before:

Magistrate C Farnan

JUDGMENT

Introduction

Ali Abbas appealed to the District Court from the decisions of a magistrate on 12 October 2024 finding that he was guilty of an offence that he between 9:30am and 12:00pm on 30 November 2023 possessed of a knife (not a prohibited weapon) in the premises of the Downing Centre Local Court, contrary to s 8(1)(b) Court Security Act 2005, thereupon convicting him and imposing a fine. [1]
1. 8 Possession of restricted items in court premises [
I heard the appeals on 12 May 2025 and dismissed the appeal from conviction but allowed the appeal from sentence, set aside the conviction, and pursuant to s 10(1)(a), Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction directed that the charge be dismissed,
The Crown conceded that this was within the discretion of the court considering the findings by the magistrate including acceptance of the appellant’s explanation for possession of the knife in the court premises.
The parties assisted the court with the determination of the appeals by identifying the issues upon which they were advanced. They each acknowledged their agreement regarding the material facts and confined their argument to the issue of whether the appellant had a reasonable excuse for his possession of the knife.
Senior Counsel raised the question whether the prosecution had the onus of proof that the appellant did not have a reasonable excuse for the knife in his possession. After considering the submissions and the decision by the magistrate I expressed the view that regardless of where the onus of proof fell, I would not accept that the explanation given provided a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbas v The King

Details

AGLC: Abbas v The King [2025] NSWDC 218
Case: [2025] NSWDC 218
Decision Date: 12 May 2025

CaseChat Overview and Summary

In Abbas v The King, the appellant, a 16-year-old boy, was charged with possession of a knife in the premises of the Parramatta Local Court. The knife was not classified as a prohibited weapon. The appellant’s appeal focused on two primary issues: the dismissal of his appeal against the conviction and the appeal against his sentence. The case was heard in the NSW Court of Criminal Appeal, which had to determine the sufficiency of the evidence to establish dominion and control over the knife, as well as the requisite mental intent for possession.

The legal issues the court had to decide involved the interpretation of the statutory definition of possession under the Crimes Act 1900 (NSW). The court examined whether the evidence was sufficient to prove that the appellant had dominion and control over the knife and whether he possessed the knife with the requisite mens rea. The court also had to consider whether the sentence imposed was appropriate given the nature of the offence and the appellant's age.

The Court of Criminal Appeal found that there was insufficient evidence to prove dominion and control over the knife and the requisite mens rea. The appeal against conviction was dismissed because the evidence did not establish the appellant's possession of the knife with the necessary intent. However, the sentence appeal was allowed because the sentence imposed was excessive. The court set aside the conviction and dismissed the charge without proceeding to conviction under s10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

This decision highlights the importance of clear evidence in establishing possession and intent in criminal cases. The court's ruling also emphasises the need for sentencing to take into account the age and circumstances of the offender.

Orders

Orders of the court

Appeal from Conviction Dismissed.

Sentence Appeal allowed.

Conviction is set aside and pursuant to s10(1)(a) Crimes (Sentencing Procedure) Act without proceeding to conviction the charge is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Abbas v R [2025] NSWDC 218
Hearing dates:	12 May 2025
Date of orders:	12 May 2025
Decision date:	12 May 2025
Jurisdiction:	Criminal
Before:	Bennett SC ADCJ
Decision:	Appeal from Conviction Dismissed. Sentence Appeal allowed. Conviction is set aside and pursuant to s10(1)(a) Crimes (Sentencing Procedure) Act without proceeding to conviction the charge is dismissed.
Catchwords:	CRIMINAL LAW - Conviction Appeal - Sentence Appeal - Possession of a knife (not a prohibited weapon) in Court premises – Dominion and control over the knife – Mental intent for possession
Legislation Cited:	Court Security Act 2005. Crimes (Sentencing Procedure) Act 1999. Crimes Act 1900. Supreme Court Act 1970
Cases Cited:	He Kaw Teh v The Queen[1985] HCA 43. Lunney v DPP [2021] NSWCA 186. Police v Peter Melbourne Kennedy (1998) 71 SASR 175. Proudman v Dayman [1941] HCA 28. R v Martindale.[1986] 1 WLR 1042. Sherras v De Rutzen [95] 1 QB 918
Texts Cited:	Cambridge Dictionary Oxford Languages
Category:	Principal judgment
Parties:	Appellant: Ali Abbas. Respondent: Director of Public Prosecutions (NSW)
Representation:	Counsel: Greg James QC: Appellant Solicitors: One Group Legal : Appellant Officer of the Director of Public Prosecutions (NSW): Crown Respondent
File Number(s):	2024/00007657
Decision under appeal	Court or tribunal: Local Court, The Downing Centre Jurisdiction: Criminal Date of Decision: 30 October 2024 Before: Magistrate C Farnan