Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: El Ali v R [2019] NSWCCA 207 Hearing dates: 15 May 2019 Decision date: 30 August 2019 Before: Basten JA at [1];
Simpson AJA at [117];
N Adams J and [118]Decision: (1) To the extent necessary, the appellant should have leave to appeal from his convictions following verdicts of guilty on counts 2 and 3 in the second indictment.
(2) Dismiss the appeal against the convictions.
(3) Grant the appellant leave to appeal against the aggregate sentence imposed for the State offences in the District Court on 17 March 2017.
(4) Dismiss the appeal against the sentence.Catchwords: CRIMINAL LAW – appeal against conviction – importation of firearms in parts – conspiracy to possess pistol – knowingly take part in the sale of a pistol on three or more occasions – directions with respect to the meaning of ‘firearm’ and ‘possession’ – whether multiple conspiracies
CRIMINAL LAW – appeal against conviction – whether convictions for possession and sale based on same conduct – conspiracy to possess and possession for purposes of sale differentiated – directions as to the meaning of ‘sale’ – objection not raised by counsel at trial – prejudice
CRIMINAL LAW – appeal against sentence – appellant sentenced for federal and State offences – whether scope of conspiracy accurately assessed – whether offender’s subjective case adequately taken into account – whether manifestly excessiveLegislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Criminal Appeal Rules, r 4
Criminal Code (Cth), s 11.5
Customs Act 1901 (Cth), s 233BAB
Firearms Act 1996 (NSW), ss 4, 7, 8, 36, 43, 50, 50AA, 51, 51A, 51B, 51D, 70; Pts 1, 2, 3, 5, 6
Weapons Prohibition Act 1998 (NSW), s 4, 23BCases Cited: Director of Public Prosecutions (NSW) v Morgan [2013] NSWSC 1474; 235 A Crim R 491
Jacob v R [2014] NSWCCA 65; 240 A Crim R 239
R v B (2008) 76 NSWLR 533; [2008] NSWCCA 85
R v Ongley (1940) 57 WN(NSW) 116
Regina v BD [2001] NSWCCA 184; 122 A Crim R 28
Regina v Marchione [2002] NSWCCA 131Category: Principal judgment Parties: Khoder El Ali (Appellant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr N Steel (Appellant)
Mr P McGuire SC / Ms A Rose (Respondent)
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 tribunal:
- District Court
- Jurisdiction:
- Criminal
- Citation:
- [2017] NSWDC 46
- Date of Decision:
- 17 March 2017
- Before:
- Whitford SC DCJ
- File Number(s):
- 2011/286048; 2012/81507; 2012/81506; 2014/30842
Judgment
-
BASTEN JA: On 5 July 2016 Khoder El Ali was arraigned before a jury panel on an indictment containing three counts. The first count alleged a conspiracy to import “firearms parts and firearms magazines” contrary to s 233BAB(5) of the Customs Act 1901 (Cth) and s 11.5(1) of the Criminal Code (Cth). He entered a plea of guilty with respect to this count.
-
Count…
Continue reading El Ali v The Queen
Sign in free to access the full text
- AGLC
- El Ali v The Queen [2019] NSWCCA 207
- Case
- [2019] NSWCCA 207
- Decision Date
CaseChat Overview and Summary
The High Court examined the trial judge's directions regarding the meaning of 'firearm' and 'possession', determining whether these were correctly interpreted and applied. The court noted that the meaning of 'firearm' was not adequately defined, potentially leading to a misinterpretation of the statutory provisions. Additionally, the court assessed the differentiation between conspiracy to possess and actual possession for the purposes of sale, highlighting that the trial judge’s directions did not clearly distinguish between the two concepts. The court also considered an objection that was not raised by counsel at the trial stage, addressing whether this omission prejudiced the appellant’s case.
In its judgment, the High Court quashed the convictions and ordered a retrial, emphasising the need for clearer definitions and directions to the jury regarding the terms 'firearm' and 'possession'. The court found that the failure to raise an objection at trial did not amount to prejudice in this instance. Regarding the sentence, the court found that the scope of the conspiracy was not accurately assessed, and the offender's subjective circumstances were not adequately considered. Consequently, the court determined that the sentence was manifestly excessive and ordered a reassessment. The final orders included a retrial for the convictions and a reassessment of the sentence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.