Abdul-Kader, Mostafa v The Queen - [2007] NSWCCA 329

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: ABDUL-KADER, Mostafa v R [2007] NSWCCA 329

FILE NUMBER(S):
2007/3229

HEARING DATE(S): 18 October 2007

JUDGMENT DATE: 29 November 2007

PARTIES:
Mostafa ABDUL-KADER (Appellant)
Regina (Respondent)

JUDGMENT OF: Beazley JA Hulme J Latham J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 2005/1091

LOWER COURT JUDICIAL OFFICER: Kirby J

LOWER COURT DATE OF DECISION: 5 September 2006

COUNSEL:
P Hamill SC (Appellant)
D Arnott SC (Respondent)

SOLICITORS:
Murphy's Lawyers Inc (Appellant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW - evidence – the ‘credibility rule’ – exception to credibility rule – re-establishing credit – prior consistent statement – question of admissibility of prior consistent statement to support or establish credit – trial judge held prior consistent statement would not help in determining whether evidence arrived at by reconstruction or suggestion – whether trial judge erred in refusing tender of statement
CRIMINAL LAW – sentencing – parity – appellant’s criminality of a lower objective seriousness – co-accused three years younger and of limited intellect – whether trial judge erred in imposing sentence
CRIMINAL LAW – sentencing – date of commencement of sentence - pre-sentence custody – custody not exclusively referable to sentence being passed – appellant serving sentence for other offences – whether trial judge failed to give credit for time in custody

LEGISLATION CITED:
Crimes Act 1900 ss 18, 19A, 97(1)
Crimes (Sentencing Procedure) Act 1999 ss 24(a), 47(3), Div 1A
Criminal Appeal Act 1912 s 6(2)
Criminal Procedure Act 1986 s 150
Evidence Act 1995 ss 66, 102, 108(3)(b), 192

CASES CITED:
Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606
R v Ali [2000] NSWCCA 177
R v Close (1992) 31 NSWLR 743
R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227
R v McHugh (1985) 1 NSWLR 588
R v MDB [2005] NSWCCA 354
R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
R v Simpson (1992) 61 A Crim R 58
Regina v Abdulkader & Hohaia [No 1] [2006] NSWSC 198
Roberts v R [2007] NSWCCA 112

DECISION:
1. Appeal against conviction dismissed
2. Leave to appeal against sentence allowed
3. Appeal against sentence dismissed.

JUDGMENT:

- 34 -

IN THE COURT OF
CRIMINAL APPEAL

CCAP 2007/3229
BEAZLEY JA
HULME J
LATHAM J
29 November 2007

Mostafa Abdul-Kader v Regina

Headnote

The appellant was tried and convicted on a joint indictment with John Hohaia for murder and the offence of robbery in company. The appellant was sentenced to imprisonment for a term of 21 years with a non-parole period of 15 years 9 months in respect of the murder. John Hohaia was sentenced in respect of the murder to a term of 21 years imprisonment with a non-parole period of 18 years. On the count of robbery in company, each was sentenced to a fixed term of 18 months imprisonment to be served concurrently.

At trial the appellant relied upon…

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 Abdul-Kader, Mostafa v The Queen

Details

AGLC: Abdul-Kader, Mostafa v The Queen [2007] NSWCCA 329
Case: [2007] NSWCCA 329
Decision Date: 29 November 2007

CaseChat Overview and Summary

In Abdul-Kader, Mostafa v The Queen, the appellant was convicted of murder and robbery in company. The central issue in this case was whether the trial judge erred in refusing to admit a prior consistent statement that the appellant intended to tender as evidence. The appellant argued that the statement was crucial to re-establish his credibility under the credibility rule, which generally prohibits the introduction of prior consistent statements to bolster a witness's credibility. The Court needed to decide whether the trial judge correctly applied the exception to this rule, specifically under section 108 of the Evidence Act.

The Court examined whether the prior consistent statement could assist in determining whether the evidence was derived from the witness's recollection or from suggestion. The trial judge had ruled that the statement would not aid in this determination, thus excluding it. The Court concluded that the trial judge's decision was correct, as the statement did not meet the criteria under section 108 for admissibility. The appellant's argument that the statement was critical under section 192 was also rejected, as it did not sufficiently impact the case to warrant its admission.

In addition to the evidentiary issue, the appellant challenged the proportionality of his sentence compared to that of his co-accused, John Hohaia. The appellant contended that his objective criminality and moral culpability were less than John Hohaia's, and thus his sentence should reflect this difference. However, the Court found that the trial judge appropriately considered the roles of both appellants in the crime, with the appellant being a participant but with a lesser role than John Hohaia. The Court upheld the sentence, finding no error in the trial judge's assessment of the respective roles and the corresponding sentences.

The Court ultimately dismissed the appeal, affirming the trial judge's decisions on both the evidentiary ruling and the sentencing. The judgment underscored the importance of the trial judge's discretion in applying statutory provisions and in assessing the proportionality of sentences within the context of the crime and the roles of the offenders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On the evening of 2 December 2003, the deceased, who lived at home with his family, had dinner and participated in a trivia night at the Hurlstone Park RSL Club with his parents and sister. During the course of the evening, he received a telephone call and at about 10.30pm, left the Club alone and drove a red Ford Laser to the home of John Hohaia’s mother at 52 Lucerne Street, Belmore. When he arrived, John Hohaia, John Hohaia’s mother, the appellant and Nicole Janes were present and sitting around a table drinking alcohol. The evidence was that everyone, with the exception of Nicole Janes, was affected by alcohol or cannabis, or both, at the time that the deceased arrived. George Choueiri was also at the premises, although the evidence is unclear as to whether he arrived with the deceased, or was already there when the deceased arrived. The Crown evidence as to the appellant’s involvement in the offence There was no dispute that the deceased was at 52 Lucerne Street, Belmore late on 2 December 2003, nor was there any dispute that the appellant and John Hohaia were also there. The deceased’s father made telephone contact with the deceased at 1.35am on 3 December, at which time the deceased said he would be home “soon”. At 2.24am, nearly the entire credit balance of $190 was withdrawn from the deceased’s National Australia Bank account at an ATM located at Haldon Street, Lakemba. At approximately 3.15am, Barbara Kitsios returned home from her job as a cleaner in the city, intending to visit her boyfriend who lived in a block of units next door to 52 Lucerne Street. She knew John Hohaia, and observed him walking drunkenly along Lucerne Street, towards her, with another man who, by the description she gave, was the deceased. Barbara Kitsios observed John Hohaia acting in an angry and threatening manner towards the deceased. Barbara Kitsios also gave evidence that she saw the appellant’s white van in the street and that it was parked with its back end towards the properties on 52 Lucerne Street. She was familiar both with the van and the appellant as the person who drove the van. She said the van had a very loud motor, with which she was also familiar. Barbara Kitsios went to her boyfriend’s unit, where she went to bed. At about 4am, while lying in bed, she said she heard what sounded like a fight. She then heard the van being driven off very fast. Later, in the morning of 3 December, Barbara Kitsios saw a pool of blood on the footpath outside 52 Lucerne Street. Presumptive tests for blood undertaken by police later that day on several stains on the footpath and in the forecourt of 52 Lucerne Street reacted positively. The deceased’s body was found on the afternoon of 3 December in his car in a carpark at Wiley Park. A local resident had observed the car in the same position at 5.15am. It was the Crown case that the deceased had been killed sometime between 3.15am and 5.15am. Nicole Janes, who was at the premises at 52 Lucerne Street when the deceased arrived, gave evidence that there was a dispute between the deceased and John Hohaia. The disagreement developed into an assault when John Hohaia, without warning, started punching the deceased, cutting his lip. This evidence was corroborated by the post-mortem examination, which indicated that the deceased had lacerations to the upper and lower lip.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Senior counsel for the appellant also placed some emphasis upon the importance of this evidence to the appellant’s case. This effectively was a submission directed to the operation of s 192. The alibi evidence was, of course, fundamental to the appellant’s defence. However, the making of a statement eight months later in which nothing more was said than what was contained in the evidence was not important, in the sense required by s 192. But, in any event, for the reasons that the trial judge expressed, this evidence did not qualify for admission under s 108. In those circumstances, the appeal should be rejected.Operation of the proviso Even if I am wrong and his Honour should have admitted the prior consistent statement made by Robert Dibb on 29 July 2004, I am of the opinion that this is a case in which the proviso should apply: Criminal Appeal Act 1912 (NSW) s 6(2). This was a strong Crown case. I have referred above in summary form to some, but not all, of the evidence. It is correct that there were some inconsistencies in Vinita Ram’s statement in particular. Likewise, there was a basis upon which her evidence could be open to challenge in that it was only after her relationship with the appellant ended that she told the police what became her evidence at trial. Nonetheless, there was a significant body of other evidence at trial which corroborated her evidence. The jury were entitled to accept her evidence and given its corroboration, it was likely to be correct, in all relevant aspects. In my opinion, therefore, the appeal should be dismissed.Application for leave to appeal against sentence The appellant and John Hohaia were sentenced by Kirby J on 5 September 2006. The appellant was sentenced in respect of the murder charge to a term of 21 years imprisonment with a non-parole period of 15 years 9 months commencing on 10 December 2004 and expiring on 9 September 2020. His Honour imposed a concurrent sentence of 18 months in respect of the charge of robbery in company, commencing on 10 December 2004 and expiring on 9 June 2006. John Hohaia was sentenced in respect of the murder charge to a term of 24 years imprisonment commencing on 4 December 2003 with a non-parole period of 18 years commencing on 4 December 2003 and expiring on 3 December 2021. His Honour imposed a concurrent sentence of a fixed term of 18 months in respect of the charge of robbery in company. John Hohaia was also sentenced in respect of an unassociated charge of assault occasioning actual bodily harm. His Honour imposed a concurrent term of 9 months in respect of that charge. The appellant seeks leave to appeal against sentence on the ground that there was a lack of proper proportion between the sentence imposed on him and that imposed on John Hohaia, whose objective criminality and moral culpability was significantly higher: ground 2(a). The appellant contended that a different, less severe, sentence was warranted and ought to have been imposed: ground 2(b). Kirby J found that John Hohaia was the principal aggressor and was primarily responsible for the battering sustained by the deceased (Remarks on Sentence [15]). His Honour found that the appellant was physically involved in the bashing of the deceased, although he was unable to precisely determine at what point the appellant engaged in the bashing, other than the evidence that he had attacked and kicked the deceased outside the house at 52 Lucerne Street. His Honour found, beyond reasonable doubt, that the appellant physically struck the deceased, but also that he played a much lesser role than John Hohaia in the brutality. His Honour held that the appellant was present and offering encouragement at various stages of the assault, including at the end.