Diab v Regina - [2009] NSWCCA 58

New South Wales
Court of Criminal Appeal

CITATION: Diab v Regina [2009] NSWCCA 58

HEARING DATE(S): 5 March, 2009

JUDGMENT DATE:
11 March 2009

JUDGMENT OF: Beazley JA at 1; Blanch J at 2; Howie J at 18

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - manslaughter

LEGISLATION CITED: Crimes Act, 1900, s18(1)(b)

CATEGORY: Principal judgment

CASES CITED: R v Forbes (2005) 160 A Crim R 1

PARTIES: Ali Diab (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/3149

COUNSEL: I McClintock SC/M Coroneos (Applicant)
D Arnott SC (Respondent)

SOLICITORS: Justin Hanby, Hanby & Associates (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2006/1451

LOWER COURT JUDICIAL OFFICER: Studdert J

LOWER COURT DATE OF DECISION: 7 June, 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Ali Diab

IN THE COURT OF
CRIMINAL APPEAL

CCA 2006/3149

BEAZLEY JA
BLANCH J
HOWIE J

11 March, 2009

Ali DIAB v Regina

JUDGMENT

1 BEAZLEY JA: I agree with Blanch J.

2 BLANCH J: This is an application for leave to appeal against a sentence imposed in the Supreme Court on 7 June, 2007. The applicant had entered a plea of guilty to a charge of manslaughter contrary to s18(1)(b) of the Crimes Act, 1900 and he was sentenced to imprisonment for a non-parole period of 7 years and 9 months to date from 7 June, 2005 with a balance of term of 2 years and 6 months. The maximum penalty for the offence is 25 years imprisonment.

3 The applicant had been committed for trial on a charge of murder but the Crown subsequently presented an indictment for manslaughter accepting it could not discharge its onus of proving beyond reasonable doubt the applicant did not believe his conduct was necessary to defend himself.

4 The offence occurred on 15 May, 2005. The applicant and Rabih Abdulrahman were engaged in illegal drug dealing. There was a dispute between them and the deceased, who was also their competitor in drug dealing. At the relevant time the applicant and Abdulrahman were staying in a unit rented by a witness who had earlier had a relationship with Abdulrahman and they were conducting their drug dealing operations from there.

5 On 15 May the deceased went to that unit and informed Abdulrahman’s friend he wanted to stay there and use it for his drug activities. The applicant, with his brother and companions, came to the unit and there was a meeting in the bedroom. There was an argument between the applicant and his brother on one side and the deceased on the other side. The deceased drew a handgun and the applicant used a pistol in his possession to fire five shots at the deceased causing his death. The deceased had not fired any shots and there was no evidence his weapon was loaded.

6 It was common ground the applicant was to be sentenced on the basis that his conduct was not a reasonable response in the…

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 Diab v Regina

Details

AGLC: Diab v Regina [2009] NSWCCA 58
Case: [2009] NSWCCA 58
Decision Date: 11 March 2009

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the appellant, Diab, against a conviction of manslaughter in the Supreme Court of Queensland. The deceased, a young boy, was fatally injured in a car accident caused by Diab's negligent driving. The appellant argued that his actions did not reach the requisite degree of criminal negligence for a manslaughter conviction. The central issue before the Court was whether the appellant's conduct fell below the threshold of criminal negligence, which is required for a manslaughter conviction.

The Court examined the concept of criminal negligence and considered whether the appellant's actions constituted a gross deviation from the standard of care that a reasonable person would have exercised in the circumstances. The Court found that the appellant's actions did indeed amount to such a deviation, and thus, the requisite criminal negligence was present. The Court held that the appellant's conduct was more than merely civilly negligent but rather represented a significant departure from the standard of care expected of a reasonable driver, warranting criminal liability.

Consequently, the Court upheld the appellant's conviction of manslaughter. The Court found that the appellant's actions demonstrated a clear disregard for the safety of others on the road, leading to the tragic death of the young boy. The Court's decision reaffirmed the importance of holding drivers accountable for their actions when they grossly deviate from the standard of care expected on the road. The appeal was dismissed, and the conviction of manslaughter was upheld.

Orders