Medium Neutral Citation: Abdallah v R [2016] NSWCCA 34
Hearing dates: 25 November 2015
Decision date: 09 March 2016
Before: Meagher JA; R A Hulme J; Bellew J
Decision:
1. Appeal against conviction dismissed.
2. Leave to appeal against sentence granted but the appeal dismissed.
Catchwords: CRIMINAL LAW – conviction appeal – murder – where ballistics experts conferred and agreed as to parts of evidence – where Crown sought to adduce evidence from expert beyond that agreement – whether Supreme Court Rules 1970 (NSW), Pt 75, Div 1, r 3K applied, notwithstanding no direction made pursuant to r 3K(1) – whether trial judge erred in permitting Crown to adduce evidence inconsistent with agreement
CRIMINAL LAW – conviction appeal – murder – where issue of self-defence raised – where error conceded in Crown Prosecutor’s closing address by reference to ‘reasonable grounds’ for belief as to necessity of actions – where no objection by appellant’s counsel at trial – whether use of description ‘genuine belief’ exacerbated error by suggesting requirement of reasonable grounds for belief – whether error caused trial to miscarry – whether error remedied by trial judge’s directions
CRIMINAL LAW – conviction appeal – murder – where issue of self-defence raised – whether Crown case in closing as to events of shooting materially different to that in opening and conduct of case – whether open to jury to reject self-defence if reasonably possible that shooting occurred in sequence described by appellant – whether open to jury to be satisfied beyond reasonable doubt as to appellant’s guilt if appellant’s evidence of belief as to necessity of actions rejected – whether verdict unreasonable or unsafe
CRIMINAL LAW – sentence appeal – murder – whether sentencing judge erred in finding intention to kill on basis not put to the jury by Crown – whether sentencing judge erred in finding seriousness of offence aggravated by premeditation or planning – whether sentencing judge failed to take provocation into account – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 18, 23, 29, 418, 419, 421
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Criminal Appeal Rules (NSW), r 4
District Court Act 1973 (NSW), s 171D
District Court Rules 1973 (NSW)
Evidence Act 1995 (NSW), ss 55, 137, 191
Supreme Court Rules 1970 (NSW), Pt 75, Div 1, rr 3J, 3K
Uniform Civil Procedure Rules 2005 (NSW), rr 31.21, 31.22
Cases Cited: Haoui v The Queen [2008] NSWCCA 209; 188 A Crim R 331
Jubraeel v R [2015] NSWCCA 131
Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544
Libke v The Queen [2007] HCA 30; 230 CLR 559
M v The Queen [1994] HCA 63; 181 CLR 487
R v Acton [2001] QCA 155
R v Milne (No 1) [2010] NSWSC 932; 260 FLR 166
R v Conlon (1993) 69 A Crim R 92
R v Katarzynski [2002] NSWSC 613
R v Oblach [2005] NSWCCA…

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 Abdallah v R

Details

AGLC: Abdallah v R [2016] NSWCCA 34
Case: [2016] NSWCCA 34
Decision Date: 09 March 2016

CaseChat Overview and Summary

The appellant, Abdallah, appealed against his conviction and sentence for murder. The case was heard in the Court of Criminal Appeal, where the appellant contested the correctness of his conviction and the appropriateness of his sentence. The primary issues in the appeal were the admissibility of expert evidence, the handling of the self-defence argument by the trial judge, and the consistency of the Crown's case with respect to the events of the shooting. The appellant also argued that the sentence was manifestly excessive and not properly grounded in the facts found by the jury.

The court examined whether the trial judge had erred in permitting the Crown to adduce expert evidence that went beyond the agreement of the ballistics experts. The court considered whether Supreme Court Rules 1970 (NSW), Pt 75, Div 1, r 3K applied in this situation, despite no direction being made pursuant to r 3K(1). Additionally, the court scrutinised the impact of the Crown Prosecutor's closing address on the self-defence argument, where the prosecutor referred to 'reasonable grounds' for belief rather than a 'genuine belief'. The court also considered whether any errors in the closing address, which were not objected to at trial, caused a miscarriage of justice or were remedied by the trial judge's directions. The consistency of the Crown's case and the jury's ability to reject the self-defence plea were further examined, along with the sufficiency of the evidence to support the appellant's guilt beyond reasonable doubt.

The Court of Criminal Appeal held that the trial judge had not erred in permitting the Crown to present expert evidence that was not part of the agreed-upon expert opinion. The court found that the Supreme Court Rules did not apply in the absence of a specific direction, and that any inconsistency in the expert evidence did not prejudice the appellant. Regarding the self-defence argument, the court determined that while there was an error in the prosecutor's closing address, it did not result in a miscarriage of justice, and any potential prejudice was mitigated by the trial judge's directions to the jury. The court also found that the jury was properly directed on the issue of self-defence and that the evidence was sufficient to support the appellant's conviction. Finally, the court considered the sentence appeal and concluded that the sentencing judge's findings were properly based on the evidence and the applicable legal principles.

The Court of Criminal Appeal dismissed the appeal against conviction and sentence, affirming the appellant's conviction for murder and the sentence imposed by the sentencing judge.

Orders