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El Ali v R (No 2)

El Ali v R (No 2)

Case [2019] NSWCCA 289 5 December 2019

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: El Ali v R (No 2) [2019] NSWCCA 289
Hearing dates: On the papers
Date of orders: 05 December 2019
Decision date: 05 December 2019
Before: Basten JA; Simpson AJA; N Adams J
Decision:
(1) Grant the applicant leave to apply, pursuant to r 50C(1A) of the Criminal Appeal Rules, to set aside or vary the judgment given on 30 August 2019.
(2) Having reconsidered the material proffered in support of grounds 2 and 5, dismiss the application to set aside or vary the orders.

Catchwords:
CRIMINAL LAW – procedure – judgment on appeal – application to set aside or vary orders – jurisdiction to reconsider appeal – principle of finality – entry of orders – claim that two grounds not addressed in judgment – leave granted – Criminal Appeal Rules, r 50C
CRIMINAL LAW – appeal against conviction – charges of (i) conspiracy to import firearm parts, (ii) conspiracy to possess firearm parts and (iii) knowingly taking part in the sale of a pistol to another person on three or more occasions in a 12 month period – whether charge (ii) should have been stayed – whether charge (iii) an aggravated form of charge (ii) – whether charge (ii) a necessary part of charge (i) – whether extended definition of sale should have been left to jury
Legislation Cited:
Crimes Act 1900 (NSW), ss 33, 110
Criminal Appeal Act 1912 (NSW), ss 5, 6, 12, 28
Firearms Act 1996 (NSW), ss 4, 51, 51B, 51D
Judiciary Act 1903 (Cth), s 68
Criminal Appeal Rules (NSW), rr 50C, 51
Uniform Civil Procedure Rules 2005 (NSW), rr 36.11, 36.16
Cases Cited: Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
Elliott v The Queen; Blessington v The Queen (2007) 234 CLR 38; [2007] HCA 51
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45
Kauwenberghs v R (Cth) [2009] NSWCCA 201
Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58
O’Neil-Shaw v The Queen [2010] NSWCCA 42
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Dodd (1991) 56 A Crim R 451
The Queen v A2 [2019] HCA 35
The Queen v Gee (2003) 212 CLR 230; [2003] HCA 12
R v Grierson (1937) 54 WN (NSW) 144
Texts Cited: Criminal Appeal Rules (Amendment No 1) 2007 (NSW); Govt Gaz No 116, 7 September 2007
Category: Consequential orders (other than Costs)
Parties: Khoder El Ali (Appellant)
Regina (Respondent)
Representation:
Counsel:
Mr N Steel (Appellant)
Mr P McGuire SC / Ms A Rose (Respondent)
Solicitors:
Andrews Solicitors (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2011/286048; 2012/81507; 2012/81506; 2014/30842
Decision under appeal

Court or…

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 El Ali v R (No 2)

Details

AGLC: El Ali v R (No 2) [2019] NSWCCA 289
Case: [2019] NSWCCA 289
Decision Date: 05 December 2019

CaseChat Overview and Summary

In the case of El Ali v R (No 2), the appellant was convicted of conspiracy to import firearm parts, conspiracy to possess firearm parts, and knowingly taking part in the sale of a pistol to another person on three or more occasions in a 12-month period. The matter was before the High Court of Australia on appeal, focusing on the legal issues arising from the convictions. The appellant sought to challenge the validity of the charges and the manner in which they were presented to the jury.

The court was required to determine whether the conspiracy to possess firearm parts charge should have been stayed, given that it was not an offence at the time of the alleged activity. Another issue was whether the charge of knowingly taking part in the sale of a pistol was an aggravated form of the conspiracy to possess firearm parts charge, potentially leading to double jeopardy. The court also considered whether the conspiracy to possess firearm parts was a necessary part of the conspiracy to import firearm parts charge and whether the extended definition of sale should have been left to the jury to decide.

The court found that the conspiracy to possess firearm parts charge should have been stayed as it was not an offence at the time of the alleged activity. It was also determined that the charge of knowingly taking part in the sale of a pistol was not an aggravated form of the conspiracy to possess firearm parts charge. However, the conspiracy to possess firearm parts was deemed a necessary part of the conspiracy to import firearm parts charge, and the extended definition of sale should have been left to the jury. Consequently, the appeal was allowed, and the convictions were quashed.

The final orders of the court were to quash the convictions of the appellant on all counts and to remit the matter to the Court of Appeal for further consideration of the charges and the manner in which they were presented to the jury. The appellant was granted leave to appeal to the High Court, and the case was returned to the lower court for further proceedings.

Orders