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Alameddine v R

Alameddine v R

Case [2022] NSWCCA 219 7 October 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Alameddine v R [2022] NSWCCA 219
Hearing dates: 23 September 2022
Date of orders: 23 September 2022
Decision date: 07 October 2022
Before: Beech-Jones CJ at CL
Hamill J
N Adams J
Decision:
(1) Grant leave to appeal to both applicants under s 5F(3)(a) of the Criminal Appeal Act 1912;
(2) Appeal allowed;
(3) Set aside the order made by his Honour Judge Hoy SC on 15 September 2022 refusing each applicant leave under s 132A(1) of the Criminal Procedure Act 1986 (NSW) to apply for an order they be tried by a Judge alone;
(4) Grant each applicant leave under s 132A(1) of the Criminal Procedure Act 1986 (NSW) leave to apply for an order they be tried by a Judge alone;
(5) Pursuant to s 132(2) of the Criminal Procedure Act 1986 order that each applicant be tried by a Judge alone;
(6) To the extent necessary, remit the balance of the proceedings to the District Court.

Catchwords:
PRACTICE AND PROCEDURE – appeal from interlocutory order – refusal of trial judge to grant leave to apply for trial by a judge alone less than 28 days prior to the date fixed for the trial – Crown opposed leave but if leave granted consented to order – accepted that application did not involve “judge shopping” – trial judge refused application because of “appearance” of judge shopping – trial judge erred in not considering that one accused could not apply earlier because other accused did not consent – trial judge erred in acting on basis that appearance of judge shopping could remain where it was accepted that neither applicant engaged in judge shopping – appeal allowed – leave granted – orders for judge alone trial made

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
House v King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Dawson [2022] NSWSC 552
R v Jenkin [2018] NSWSC 634
R v Perry (1993) 29 NSWLR 589
R v Quami & Ors (No 14) [2016] NSWSC 274
R v Simmons; R v Moore (2015) 249 A Crim R 120; [2015] NSWSC 259

Category: Principal judgment
Parties: Hamdi Andrew Alameddine (Applicant)
Rafat Alameddine (Applicant)
Rex (Respondent)
Representation:
Counsel:
Ms A Francis (Hamdi Alameddine)
Mr D Dalton SC (Rafat Alameddine)
Ms M Kumar (Respondent)
Solicitors:
Bannisters Lawyers (Hamdi Alameddine)
Karnib Saddik Law Firm (Rafat Alameddine)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/398532, 2019/399049
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

15 September 2022

Before:

Hoy SC DCJ

File Number(s):

2019/398532, 2019/399049

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicants are co-accused on an indictment charging them with an offence of robbery with wounding contrary to s 98 of the Crimes Act 1900 (NSW) and an…

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 Alameddine v R

Details

AGLC: Alameddine v R [2022] NSWCCA 219
Case: [2022] NSWCCA 219
Decision Date: 07 October 2022

CaseChat Overview and Summary

The case before the court involved a defendant, Alameddine, who appealed against the refusal of an interlocutory order by a trial judge. Alameddine sought leave to apply for a trial by a judge alone less than 28 days prior to the trial date. The Crown opposed the application but conceded that if leave were granted, they would not oppose the subsequent application for a judge alone trial. The trial judge declined to grant leave, considering the application as an instance of "judge shopping" due to the timing of the request. Alameddine argued that the refusal was erroneous because the Crown had accepted that the application did not involve judge shopping, and the other accused could not apply earlier due to the lack of consent from the other accused. The court needed to decide whether the trial judge was correct in refusing leave based on the perceived appearance of judge shopping, especially when it was acknowledged that neither applicant was engaging in judge shopping.

The legal issue central to the court's decision was whether the trial judge correctly exercised his discretion in refusing Alameddine's application for leave to apply for a trial by a judge alone. The court examined the trial judge's reasoning and whether it was appropriate to consider the appearance of judge shopping when both the Crown and the other accused had accepted that the application did not involve such practices. The court found that the trial judge erred in refusing the application on the basis that the appearance of judge shopping could remain, even though it was acknowledged that neither applicant was engaging in judge shopping. The court held that the trial judge should have considered that one accused could not apply earlier because the other accused did not consent, and the Crown had agreed that the application did not involve judge shopping.

The court allowed the appeal, concluding that the trial judge's refusal to grant leave was erroneous. It was determined that the trial judge should have focused on the fact that the other accused did not consent to an earlier application, and the Crown's concession that the application did not involve judge shopping. The court granted leave for the application to be heard and ordered that the trial by a judge alone should proceed. This decision highlights the importance of considering all relevant factors when a trial judge exercises discretion in such matters, and that the mere appearance of judge shopping should not override the acceptance by all parties involved that no judge shopping is occurring.

Orders