Ardestani v R - [2024] NSWCCA 31

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Ardestani v R [2024] NSWCCA 31
Hearing dates: 29 November 2023
Decision date: 08 March 2024
Before: Harrison CJ at CL at [1];
Button J at [2];
Weinstein J at [83]
Decision:
(1) Grant leave to appeal against conviction.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – where applicant charged with specially aggravated break, enter, and commit assault occasioning actual bodily harm – joint criminal enterprise to break and enter victim’s home, commit common assault, and steal cash – whether guilty verdict was unreasonable or unsupported by the evidence – three particulars – evidence sufficient to find agreement to assault made before breaking and entering – evidence sufficient to find that infliction of actual bodily harm was foreseen as a possibility in carrying out the joint criminal enterprise – discussion of whether prohibited to combine legal concepts of extended joint criminal enterprise and committing the offence in company – concepts able to stand together – consideration of Markou v R – in that case only the assault itself required to be proven to have been committed in company, not the consequence of actual bodily harm – whether miscarriage of justice occasioned by trial judge’s failure to provide written directions about the doctrines of basic and extended joint criminal enterprise – oral directions sufficient – no sign of any difficulties in jury’s understanding – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW) s 112(3)

Cases Cited:
Bromley v The King (2023) 98 ALJR 84; [2023] HCA 42
Ford v R [2020] NSWCCA 99
Johns v the Queen (1980) 143 CLR 108; [1980] HCA 3
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Markou v R (2012) 221 A Crim R 48; [2012] NSWCCA 64
Mitchell v The King (2023) 97 ALJR 172; [2023] HCA 5
R v Button [2002] NSWCCA 159
Zheng v The Queen [2021] NSWCCA 78

Category: Principal judgment
Parties: Saeid Miraki Ardestani (Applicant)
Rex (Respondent)
Representation: Counsel:
C Parkin (Applicant)
E Nicholson (Respondent)
Solicitors:
Lawyers Corp Pty Ltd (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/16634
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 September 2022

Before:

Herbert DCJ

File Number(s):

2019/16634

HEADNOTE

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

On 16 September 2022, Mr Saeid Miraki Ardestani (the applicant) was found guilty of a specially aggravated break and enter (contrary to s 112(3) of the Crimes Act 1900 (NSW)) following the conclusion of a trial by jury in the District Court of NSW. The offending was said to have occurred on the evening of 15 January 2019. The applicant, a co-offender convicted alongside the applicant following the joint trial, and an unknown third offender had entered a dwelling house in Merrylands, armed with an imitation pistol, as part of a joint criminal…

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 Ardestani v R

Details

AGLC: Ardestani v R [2024] NSWCCA 31
Case: [2024] NSWCCA 31
Decision Date: 08 March 2024

CaseChat Overview and Summary

The applicant, Ardestani, appealed against his conviction for specially aggravated break, enter, and commit assault occasioning actual bodily harm, jointly with another person. The case was heard and dismissed by the court. The primary legal issue was whether the guilty verdict was unreasonable or unsupported by the evidence, specifically regarding three points. The court examined whether there was sufficient evidence to conclude that an agreement to assault was made before breaking and entering, and if the infliction of actual bodily harm was foreseen as a possibility in executing the joint criminal enterprise. Additionally, the court deliberated whether it was impermissible to combine the legal concepts of extended joint criminal enterprise and committing the offence in company. The court referenced Markou v R, noting that only the assault itself needed to be proven to have been committed in company, not the consequence of actual bodily harm. The court further considered whether a miscarriage of justice was occasioned by the trial judge’s failure to provide written directions about the doctrines of basic and extended joint criminal enterprise, concluding that oral directions were sufficient and there were no signs of difficulties in the jury’s understanding.

The court dismissed the appeal, affirming that the evidence was sufficient to support the guilty verdict. It held that the legal concepts of extended joint criminal enterprise and committing the offence in company could coexist, and the trial judge's oral directions were adequate. The court also found no miscarriage of justice due to the lack of written directions, as the jury appeared to comprehend the legal principles involved. Therefore, the conviction was upheld and the appeal was dismissed.

Orders