El Ali v The Queen - [2019] NSWCCA 207

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 excessive
Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
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, 23B
Criminal Appeal Rules, r 4
Cases 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 131
Category: Principal judgment
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 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…

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 The Queen

Details

AGLC: El Ali v The Queen [2019] NSWCCA 207
Case: [2019] NSWCCA 207
Decision Date: 30 August 2019

CaseChat Overview and Summary

In the case of El Ali v The Queen, the appellant El Ali was convicted of various charges related to the importation of firearms in parts and conspiracy to possess and sell pistols. The appeal was heard in the High Court of Australia, which examined the convictions and sentence imposed. The legal issues addressed involved the interpretation of the terms 'firearm' and 'possession' in the context of the importation and sale of firearms, as well as the differentiation between conspiracy to possess and actual possession for sale purposes. Furthermore, the court considered whether the convictions for possession and sale were based on the same conduct, and whether the trial judge’s directions to the jury were adequate and whether any objections raised by counsel were sufficiently addressed.

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