Medium Neutral Citation: Fadel v R [2017] NSWCCA 134
Hearing dates: 10 March 2017
Decision date: 16 June 2017
Before: Simpson JA at [1]; Button J at [160]; N Adams J at [161]
Decision:
(1)  Appeal against conviction dismissed;

(2)  Leave granted to appeal against the sentence;
(3)  Appeal dismissed.
Catchwords:
CRIMINAL LAW – appeal – evidence – witnesses – in-court identification – whether in-court identification evidence in circumstances where the witness had previously identified the accused required the discharging of the jury – whether direction by trial judge advising the jury to disregard in-court identification was adequate to cure prejudice – no error established

EVIDENCE – appeal – absence of DNA evidence – where counsel invited the jury to draw an exculpatory inference from an absence of DNA evidence – whether trial judge erred in directing the jury to treat the absence of DNA evidence as neutral – no error established

CRIMINAL LAW – appeal – conviction – assault occasioning grievous bodily harm – whether conviction unreasonable and unsupported by the evidence – discrepancies in identification evidence – evidence of another person making an admission – verdict of guilty open on the evidence
CRIMINAL LAW – appeal – sentence – assault occasioning grievous bodily harm – whether sentencing judge erred in assessing objective seriousness – whether sentence manifestly excessive – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 1A
Crimes Act 1900 (NSW), s 33
Evidence Act 1995 (NSW), ss 55, 56, 116, 137, 165
Cases Cited: Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17
Aslett v R [2009] NSWCCA 188
Davies v The King; Cody v The King (1937) 57 CLR 170; [1937] HCA 27
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Domican v R (No 3) (1990) 46 A Crim R 428
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Raumakita v R (2011) 210 A Crim 326; [2011] NSWCCA 126
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Vuni v R [2006] NSWCCA 171
Category: Principal judgment
Parties: Mohamed Fadel (Appellant)
Regina (Respondent)
Representation:
Counsel:
J I Ghabrial (Appellant)
S Hughes (Respondent)
Solicitors:
Oxford Lawyers Pty Ltd (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2012/268557
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

04 March 2016

Before:

Culver DCJ

File…

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 Fadel v The Queen

Details

AGLC: Fadel v The Queen [2017] NSWCCA 134
Case: [2017] NSWCCA 134
Decision Date: 16 June 2017

CaseChat Overview and Summary

In the matter of Fadel v The Queen, the appellant sought to appeal his conviction and sentence for assault occasioning grievous bodily harm. The case was heard in the High Court of Australia, which was tasked with assessing the sufficiency and admissibility of the evidence presented during the trial, as well as the propriety of the sentence imposed. The appellant contested various aspects of the trial process, including the handling of in-court identification, the absence of DNA evidence, and the reasonableness of the conviction and sentence. The central legal issues revolved around whether the trial judge's instructions to the jury regarding in-court identification and the absence of DNA evidence were adequate, and whether the conviction was supported by the evidence presented. The court found that no error had been established in the trial judge's directions and that the evidence was sufficient to support the conviction.

The court meticulously examined the trial judge's directions to the jury concerning the in-court identification. It held that the judge's instructions to disregard the in-court identification were sufficient to mitigate any prejudicial impact, and that no miscarriage of justice occurred. Regarding the absence of DNA evidence, the court concluded that the trial judge correctly directed the jury to treat the absence of such evidence neutrally, as it was not inherently exculpatory. The court further assessed whether the conviction was unreasonable and unsupported by the evidence, noting that while there were discrepancies in the identification evidence, and an admission by another person, the verdict of guilty was still open on the evidence. The court found that the discrepancies and other evidence did not render the conviction unreasonable.

The appeal also challenged the sentence imposed by the sentencing judge, arguing that there was an error in assessing the objective seriousness of the offence and that the sentence was manifestly excessive. The High Court, however, dismissed these claims, finding no error in the sentencing process. The court held that the sentencing judge appropriately considered all relevant factors and that the sentence was proportionate to the seriousness of the offence. In light of these findings, the appeal was dismissed, and the conviction and sentence were upheld.

Orders