Bilal v Middlemiss (No 2) - [2022] ACTSC 251

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bilal v Middlemiss (No 2)
Citation:	[2022] ACTSC 251
Hearing Date:	1 September 2022
DecisionDate:	15 September 2022
Before:	Kennett J
Decision:	See [42]
Catchwords:	CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – where specific error alleged – whether Magistrate erred in relying on common knowledge regarding the Rebels Outlaw Motorcycle Gang pursuant to s 144 of the Evidence Act 2011 (ACT) –whether Magistrate erred by taking into account aggravating feature contrary to the principle established in R v De Simoni (1981) 147 CLR 383 – whether Magistrate erred in expressing doubt about material contained in unsworn statements in the absence of cross-examination or rebuttal – appeal allowed and appellant re-sentenced
Legislation Cited:	Criminal Code 1995 (Cth) ss 474.15, 474.17 Evidence Act 2011 (ACT) ss 4, 144
Cases Cited:	Browne v Dunn (1893) 6 R 67 House v The King (1936) 55 CLR 499 Middlemiss v Bilal [2022] ACTMC 17 R v De Simoni (1981) 147 CLR 383 R v McCallum [2020] ACTSC 15 R v Pishdari [2018] SASCFC 94; 274 A Crim R 91 R v Rae (1998) 45 NSWLR 546
Parties:	Ali Hassan Bilal ( Appellant) Jude Joseph Middlemiss ( Respondent)
Representation:	Counsel F J Purnell SC ( Appellant) T Hickey ( Respondent)
Solicitors Aulich Criminal Law ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	SCA 26 of 2022
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 2 August 2022 Case Title: Middlemiss v Bilal Citation: [2022] ACTMC 17

KENNETT J:

On 29 April 2022 the appellant entered pleas of guilty, in the Magistrates Court, to the following charges:

(a)CAN 12087/21: that he, on 19 January 2021, used a carriage service to make threats to another person, namely, Azin Al Naqib a threat to cause serious harm to him intending for Azin Al Naqib to fear that the threat would be carried out, in contravention of s 474.15(2) of the Criminal Code 1995 (Cth) (Criminal Code).
(b)CAN 12088/21: that he, on 25 January 2021, used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing in contravention of s 474.17(1) of the Criminal Code.
(c)CAN 12090/21: that he, 25 January 2021, used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing in contravention of s 474.17(1) of the Criminal Code.
(d)CAN 12093/21: that he, on 26 June 2021, used a carriage service to make threats to another person, namely, Hayley Gilbert a threat to cause serious harm to a third person namely, Fasil Jember intending Hayley Gilbert to fear that the threat would be carried out, in contravention of s 474.15(2) of the Criminal Code.
(e)CAN 19096/21: that he, on 12 August 2021, used a carriage service in a way that reasonable persons would regard as being, in all the circumstances,…

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 Bilal v Middlemiss (No 2)

Details

AGLC: Bilal v Middlemiss (No 2) [2022] ACTSC 251
Case: [2022] ACTSC 251
Decision Date

CaseChat Overview and Summary

The case of Bilal v Middlemiss (No 2) before Kennett J in the Supreme Court of the Australian Capital Territory involved an appeal by Ali Hassan Bilal against the sentence imposed by the Magistrates Court. Bilal had pleaded guilty to various charges of using a carriage service to make threats and act in a menacing manner. The Magistrate had imposed a sentence of 13 months imprisonment, to be suspended after four months, with conditions including probation and restrictions on travel. Bilal's appeal focused on alleged errors in the Magistrate's consideration of the evidence and application of legal principles.

The key legal issues were whether the Magistrate erred in relying on common knowledge about the Rebels Outlaw Motorcycle Gang, whether the principle in R v De Simoni was breached by considering threats as an aggravating factor, and whether the Magistrate was correct to not fully accept the effect on the appellant's family as stated in unsworn statements. Kennett J found that the Magistrate did err in relying on common knowledge about the Rebels gang without allowing submissions from the appellant's counsel. However, the other grounds of appeal were rejected. In re-sentencing, Kennett J agreed with the Magistrate's characterisation of the offending but suspended the sentence after three months rather than four, partly due to the effect on the appellant's family. The appeal was allowed, the original sentence set aside, and Bilal was re-sentenced to various periods of imprisonment to be suspended after three months.

The final orders were that the appeal be allowed, the original sentence set aside, and Bilal be re-sentenced with the specified terms of imprisonment to be suspended after three months.

Orders