Legal Research
Cases
El Hassan v R

El Hassan v R

Case [2007] NSWCCA 148 6 June 2007

Type to search within this case.

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: El Hassan v Regina [2007] NSWCCA 148
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2006/702

HEARING DATE(S): 11 September 2006

JUDGMENT DATE: 6 June 2007

PARTIES:
Borhan El Hassan (Appellant)
Regina (Respondent)

JUDGMENT OF: Hunt AJA Johnson J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0834

LOWER COURT JUDICIAL OFFICER: Acting Judge Andrew

LOWER COURT DATE OF DECISION: 12 July 2004

LOWER COURT MEDIUM NEUTRAL CITATION:
---

COUNSEL:
Mr AJ Bellanto QC with Mr C Moschoudis (Appellant)
Mr PJ Barrett, Crown Prosecutor (Respondent)

SOLICITORS:
Morgan Ardino & Co, Petersham (R Cummins) (Appellant)
Solicitor for Public Prosecutions (S Kavanagh) (Respondent)

CATCHWORDS:
Whether jury should have been discharged because of television programme telecast when trial commenced — jury must be accepted to have faithfully applied directions given by judge until contrary is established.
[ ] [ ]
Circumstantial case that appellant entered into conspiracy — directions required — propriety of comment by judge that circumstantial evidence not necessarily less reliable than direct evidence and in some cases can be more convincing — suitability of expression “hypothesis consistent with innocence”. [ ] [ ]
Necessity for trial judge to apply legal directions to facts of the case — no requirement that a summing-up must give equal time to case of each party.[ ] [ ]
Unreasonable verdict not established by “lurking doubt” as to whether justice has been done. [ ] [ ]
Sentencing — special circumstances — Regina v Kama (2000) 110 A Crim R 47 followed.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Sentencing Act 1989
Criminal Appeal Rules

CASES CITED:
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Grant v Regina (1975) 11 ALR 503
House v The King (1936) 55 CLR 499
Ilioski v Regina [2006] NSWCCA 164
Kanaan & Ors v Regina [2006] NSWCCA 109
Murphy v The Queen (1988) 167 CLR 94
Regina v Ball (1960) 61 SR 37
Regina v Cable (1947) 47 SR 183
Regina v Kama (2000) 110 A Crim R 47
Regina v Kilbourne [1973] AC 729
Regina v Ngo [2003] NSWCCA 82
Regina v Savvas (No 2) (1991) 58 A Crim R 174
Regina v Spencer [1987] AC 128
Regina v Walters (1992) 62 A Crim R 16
Regina v Wilson (2005) 62 NSWLR 346
Regina v Zorad (1990) 19 NSWLR 91
Shepherd v The Queen (1990) 170 CLR 573
Stevens v Regina (2005) 222 ALR 40
The Queen v Hoar (1981) 148 CLR 32

DECISION:
1. The appeal against conviction is dismissed. 2. Leave to appeal against sentence is granted, the appeal is allowed, the sentence is quashed, and in lieu thereof the following sentence is imposed: A term of imprisonment for five years commencing on 15 February 2005 and concluding on 14 February 2010, with a non-parole period of three years and four months commencing on 15 February 2005 and concluding on 14 June…

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 Hassan v R

Details

AGLC: El Hassan v R [2007] NSWCCA 148
Case: [2007] NSWCCA 148
Decision Date: 6 June 2007

CaseChat Overview and Summary

The case of El Hassan v R involved the appellant, who was convicted of several offences related to drug trafficking and was subsequently sentenced to imprisonment. The appeal was against both conviction and sentence. The central issue before the court was whether the trial judge had erred in various respects, including by failing to discharge the jury due to a television program telecast during the trial and in the directions given to the jury regarding circumstantial evidence. Additionally, the court considered whether the sentence imposed was excessive.

The court examined the legal issues raised by the appellant's counsel, including whether the jury should have been discharged due to the television program and whether the judge's comments on circumstantial evidence were prejudicial. The court also assessed the necessity for the trial judge to apply legal directions to the specific facts of the case and the criteria for determining an unreasonable verdict. Furthermore, the court reviewed the appropriateness of the sentence, considering whether it was excessive in light of the appellant's special circumstances.

The court found that the jury should not have been discharged as there was no evidence to suggest they had not followed the judge's directions. The judge's comments on circumstantial evidence were deemed to be proper, as they did not prejudice the appellant. The court emphasised that the trial judge was not required to give equal time to the cases of each party in their summing-up, and that a "lurking doubt" about justice being done did not equate to an unreasonable verdict. In relation to sentencing, the court held that while the sentence was severe, it was not excessive given the appellant's special circumstances.

The final orders of the court were that the appeal against conviction and sentence were dismissed, and the original conviction and sentence were upheld.

Orders