Asadi v The King - [2025] NSWDC 239

District Court

New South Wales

Medium Neutral Citation: Asadi v R [2025] NSWDC 239
Hearing dates: 10 June 2025, 13 June 2025,
Date of orders: 27 June 2025
Decision date: 27 June 2025
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
(1)   Appeal allowed.
(2)   Set aside the orders as to conviction and sentence made by the Magistrate on 22 March 2024.
(3)   In lieu thereof, enter verdicts of not guilty in relation to all of the charges.

Catchwords:
CRIME – Appeal and review – Appeal from Local Court to District Court – By person convicted against conviction – Conviction by Local Court Magistrate – From finding of fact – Credibility of witnesses – Failure to give appropriate directions of law – Weight to be given to medical opinions tendered by the Crown without objection – Onus of proof – Undesirability of rhetorical questions as to why a witness may give false evidence

Legislation Cited:
Crimes Act 1900 (NSW) s 93T(1), s 192E(1)(b)
Crimes (Appeal and Review) Act 2001(NSW) s 11(1) in Part 3,
Evidence Act 1995 (NSW) s 136, s 165

Cases Cited:
Barca v The Queen (1975) 133 CLR 82
Charara v R [2006] NSWCCA 244
Chorora v The Queen [2006] NSWCCA 244
Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265
Fox v Percy [2003] HCA 22
Gelle v DPP (NSW) [2017] NSWCA 245
Gianoutsas v Glykis [20061 NSWCCA 137
Liberato v The Queen (1985) 159 CLR 507
Lunney v Director of Public Prosecutions [2021] NSWCA 186
Shepherd v The Queen (1990) 170 CLR 573
The Queen v Baden-Clay (2016) 258 CLR 308

Category: Principal judgment
Parties: Monireh Asadi (Appellant)
ODPP (Crown)
Representation:
Counsel:
G James KC (Appellant)
L Robeau (Solicitior) (Crown)
Solicitors:
Abbas Law (Appellant)
ODPP (Crown)

File Number(s): 2019/103732
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Sydney Downing Centre Local Court

Jurisdiction:

Crime

Date of Decision:

22 March 2024

Before:

Magistrate Barko

File Number(s):

2019/103732

JUDGMENT

Introduction

On 22 March 2024, after 10 days of hearing, including 2 days devoted to the oral delivery of comprehensive reasons, the Appellant was convicted in the Downing Centre Local Court by Magistrate Barko of one count of “participate in criminal group” in contravention of s 93T(1) of the Crimes Act 1900 (NSW) (“Crimes Act”) and four counts of “dishonestly obtaining financial advantage by deception” in breach of s 192E(1)(b) of the Crimes Act.
The Appellant appeals both her conviction and her sentence.
The Appellant was sentenced to full-time imprisonment in relation to the convictions. The sentences have been stayed pending determination of this appeal.
The Appellant was represented on the appeal by Mr G. James KC and the Crown by Ms Robeau.
It was agreed by the parties that the Appeal would proceed firstly, by me hearing full argument and delivering judgment on the conviction Appeals and thereafter, if necessary, to deal with the Appeals concerning sentence.

Nature of this Appeal

The appeal is brought pursuant to s 11(1) in Part 3…

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 Asadi v The King

Details

AGLC: Asadi v The King [2025] NSWDC 239
Case: [2025] NSWDC 239
Decision Date: 27 June 2025

CaseChat Overview and Summary

The appeal in Asadi v The King involved the appellant challenging his conviction by a Local Court Magistrate on various charges. The District Court was asked to review the decision, focusing on the credibility of witnesses and the appropriateness of the legal directions given. The appellant argued that the Magistrate failed to properly weigh the medical opinions presented by the Crown and misapplied the onus of proof. Additionally, the appellant contended that the Magistrate's rhetorical questions about the credibility of witnesses were inappropriate and prejudicial.

The key legal issues revolved around whether the Magistrate correctly assessed the credibility of the witnesses, the appropriate weight given to medical evidence, and whether the rhetorical questions posed by the Magistrate were a legal error. The court also needed to determine if the onus of proof was correctly applied in the context of the evidence presented. Ultimately, the District Court was tasked with deciding whether these errors were significant enough to warrant setting aside the conviction and sentence made by the Local Court.

In its reasoning, the District Court found that the Local Court Magistrate had indeed erred in several respects. The court noted that the Magistrate failed to provide appropriate legal directions regarding the weight to be given to medical opinions and misapplied the onus of proof. Furthermore, the rhetorical questions posed by the Magistrate about the credibility of witnesses were deemed inappropriate and prejudicial. Given these errors, the District Court concluded that they were significant enough to affect the fairness of the trial. Consequently, the appeal was allowed, and the orders as to conviction and sentence made by the Magistrate were set aside. In place of the original decision, the District Court entered verdicts of not guilty on all charges against the appellant.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside the orders as to conviction and sentence made by the Magistrate on 22 March 2024.

(3) In lieu thereof, enter verdicts of not guilty in relation to all of the charges.

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:	Asadi v R [2025] NSWDC 239
Hearing dates:	10 June 2025, 13 June 2025,
Date of orders:	27 June 2025
Decision date:	27 June 2025
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	(1) Appeal allowed. (2) Set aside the orders as to conviction and sentence made by the Magistrate on 22 March 2024. (3) In lieu thereof, enter verdicts of not guilty in relation to all of the charges.
Catchwords:	CRIME – Appeal and review – Appeal from Local Court to District Court – By person convicted against conviction – Conviction by Local Court Magistrate – From finding of fact – Credibility of witnesses – Failure to give appropriate directions of law – Weight to be given to medical opinions tendered by the Crown without objection – Onus of proof – Undesirability of rhetorical questions as to why a witness may give false evidence
Legislation Cited:	Crimes Act 1900 (NSW) s 93T(1), s 192E(1)(b) Crimes (Appeal and Review) Act 2001(NSW) s 11(1) in Part 3, Evidence Act 1995 (NSW) s 136, s 165
Cases Cited:	Barca v The Queen (1975) 133 CLR 82 Charara v R [2006] NSWCCA 244 Chorora v The Queen [2006] NSWCCA 244 Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 Fox v Percy [2003] HCA 22 Gelle v DPP (NSW) [2017] NSWCA 245 Gianoutsas v Glykis [20061 NSWCCA 137 Liberato v The Queen (1985) 159 CLR 507 Lunney v Director of Public Prosecutions [2021] NSWCA 186 Shepherd v The Queen (1990) 170 CLR 573 The Queen v Baden-Clay (2016) 258 CLR 308
Category:	Principal judgment
Parties:	Monireh Asadi (Appellant) ODPP (Crown)
Representation:	Counsel: G James KC (Appellant) L Robeau (Solicitior) (Crown) Solicitors: Abbas Law (Appellant) ODPP (Crown)
File Number(s):	2019/103732
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Sydney Downing Centre Local Court Jurisdiction: Crime Date of Decision: 22 March 2024 Before: Magistrate Barko File Number(s): 2019/103732