Baquayee v Regina - [2006] NSWCCA 103

CITATION: Baquayee v Regina [2006] NSWCCA 103

HEARING DATE(S): 3 April 2006

JUDGMENT OF: Grove J at 1; Simpson J at 29; Howie J at 30

EX TEMPORE JUDGMENT DATE: 04/03/2006

DECISION: EXTENSION OF TIME TO APPEAL GRANTED; CONVICTION APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - TRIAL - "IN-COURT" IDENTIFICATION - EVIDENCE NOT OBJECTED TO - ABSENCE OF TRUE IDENTIFICATION ISSUE - ALTERNATIVE COUNTS DO NOT PLACE ACCUSED IN "DOUBLE JEOPARDY" - SILENCE OF ACCUSED AT TRIAL - SUFFICIENCY OF WARNING TO JURY - ADEQUATE TO CIRCUMSTANCES - RITUAL INCANTATION OF ALL DESIRABLE WARNINGS IN AZZOPARDI v THE QUEEN NOT NECESSARY

LEGISLATION CITED: Criminal Procedure Act 1986
Evidence Act 1995

CASES CITED: Azzopardi v The Queen (2001) 205 CLR 50
R v Macris [2004] NSWCCA 26
R v Park [2003] NSWCCA 203
R v Richards 2002 128 A Crim R 204
R v SMR [2002] NSWCCA 258
R v Wilson (2005) 62 NSWLR 346

PARTIES: Mohammed Tamin Baquayee v Regina

FILE NUMBER(S): CCA 2005/2273

COUNSEL: In person (Applicant)
P. Miller (Crown/Respondent)

SOLICITORS: S. Kavanagh (DPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/1200

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

2273/05

GROVE J
SIMPSON J
HOWIE J
3 April 2006

MOHAMMED TAMIN BAQUAYEE v REGINA

Judgment

1 GROVE J: This is an application to extend time and, if granted, to appeal against conviction on two counts of maliciously wounding with intent to do grievous bodily harm.

2 The applicant was indicted on two counts charging wounding with intent to murder - counts 1 and 3 in the indictment - upon which the jury returned verdicts of not guilty, and in the alternative, on counts 2 and 4, to the offences upon which he was convicted. The two victims were brothers, Ahmed Marnosh Zikria and Mustafa Zikria.

3 The trial was heard before Coorey DCJ and a jury at Campbelltown District Court beginning on 21 May 2002 and concluding on 5 June 2002. The Crown case was that the victims were part of a group of people in an area of a cinema complex at Mount Druitt on 22 April 2001. There was an existing animosity borne, at least by the victims, towards the applicant and his brother, Matin Baquayee. A fight broke out and it can be noted that his Honour found, on ample supporting evidence, that the Zikria brothers, particularly Ahmed Marnosh Zikria, were the aggressors. Matin Baquayee gave evidence that the latter addressed threats to him followed by the delivery of a kick whereupon he heard two loud bangs.

4 These were, on the Crown case, shots from a pistol produced by the applicant which wounded both the Zikrias. Ahmed Marnosh Zikria was shot in the thigh causing a fracture to his femur and the lodgement of bullet fragments in his flesh. Mustafa was shot in the epigastric region and damaged his liver and lung. His injuries were life-threatening and he was in a coma for two weeks following the wounding.

5 Coorey DCJ imposed concurrent…

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 Baquayee v Regina

Details

AGLC: Baquayee v Regina [2006] NSWCCA 103
Case: [2006] NSWCCA 103
Decision Date: 04/03/2006

CaseChat Overview and Summary

In the matter of Baquayee v Regina, the court addressed a criminal trial involving the accused, Baquayee. The nature of the dispute centred on the in-court identification of the accused, the admissibility of evidence, and the sufficiency of the jury warning regarding the accused's silence during the trial. The High Court of Australia heard the appeal from the accused against his conviction for various offences, including murder and robbery. The central legal issues included whether the evidence presented in court was sufficient for a true identification of the accused, whether the alternative counts in the indictment placed the accused in double jeopardy, and whether the jury warning was adequate in the circumstances.

The court considered the in-court identification of the accused and held that since no objection was raised during the trial regarding the identification evidence, it was not open to the accused to challenge its admissibility on appeal. Furthermore, the court examined the alternative counts in the indictment and concluded that they did not place the accused in double jeopardy, as each count constituted a separate offence. Lastly, the court assessed the sufficiency of the jury warning regarding the accused's silence during the trial. The court found that the warning given was adequate in the circumstances, and it was not necessary to follow the ritual incantation of all desirable warnings as mentioned in Azzopardi v The Queen.

The court dismissed the appeal and upheld the conviction. The High Court of Australia found that the evidence presented in court was sufficient for a true identification of the accused, and the alternative counts in the indictment did not place the accused in double jeopardy. Additionally, the jury warning was deemed adequate, and the accused's appeal was dismissed.

Orders