Bargashoun v The King - [2023] NSWCCA 17

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bargashoun v R [2023] NSWCCA 17
Hearing dates: 6 February 2023
Decision date: 15 February 2023
Before: Adamson JA at [1]; N Adams J [72]; Weinstein J [73]
Decision:
(1)   Extend the time for filing the notice of appeal to 23 June 2022.
(2)   Grant leave to appeal.
(3)   Dismiss the appeal.

Catchwords:
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where jury could not be satisfied of specific intent to murder beyond reasonable doubt — application for extension of time for leave to appeal
CRIME — Appeals — Appeal against conviction — jury directions — alternative count — whether trial judge erred in directing jury Crown not required to prove individual facts beyond reasonable doubt
CRIME — Appeals — Appeal against conviction — jury directions — alternative count — whether trial judge failed to give specific unanimity direction

Legislation Cited:
Crimes Act 1900 (NSW), ss 29, 33A, 98
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; (2011) 209 A Crim R 424
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
The Queen v Crabbe (1985) 156 CLR 464; [1985] HCA 22

Category: Principal judgment
Parties: Richard Bargashoun (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Woods (Applicant)
B Hatfield (Respondent)
Solicitors:
KPT Defence Lawyers (Applicant)
Office of the Director of Public Prosecution (Respondent)

File Number(s): 2012/373923
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 May 2015

Before:

Colefax SC DCJ

File Number(s):

2012/373923

HEADNOTE

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

Richard Bargashoun (the applicant) was charged on indictment with three counts: shoot with intent to murder contrary to s 29 of the Crimes Act 1900 (NSW) (count 1); in the alternative, discharge a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act (count 2); and robbery with infliction of grievous bodily harm contrary to s 98 of the Crimes Act (count 3). He pleaded guilty to counts 2 and 3 and was convicted after trial by jury of count 1, by majority of 11, before Colefax SC DCJ (the trial judge) on 25 May 2015.

The applicant was sentenced to a term of 20 years’ imprisonment with a…

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 Bargashoun v The King

Details

AGLC: Bargashoun v The King [2023] NSWCCA 17
Case: [2023] NSWCCA 17
Decision Date: 15 February 2023

CaseChat Overview and Summary

Bargashoun appealed against his conviction for murder, arguing the verdict was unreasonable as the jury could not be satisfied of his specific intent to murder beyond reasonable doubt. He also sought an extension of time for leave to appeal, claiming the trial judge erred in directing the jury that the Crown was not required to prove individual facts beyond reasonable doubt on an alternative count and failed to give a specific unanimity direction. The appeal was heard by the High Court of Australia.

The legal issues centred on whether the jury's verdict was unreasonable, whether the trial judge correctly directed the jury regarding the burden of proof for the alternative count, and whether the trial judge erred in not giving a specific unanimity direction. The court had to determine if the trial judge's directions to the jury were appropriate and if the jury's verdict was open to the reasonable possibility that the accused did not possess the specific intent to murder.

The High Court found that the jury's verdict was not unreasonable, as it was open to the jury to find the accused guilty of murder based on the evidence presented. The court held that the trial judge's direction to the jury on the burden of proof for the alternative count was correct, and the failure to give a specific unanimity direction was not a ground for appeal. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal against conviction be dismissed and the application for an extension of time for leave to appeal was dismissed.

Orders