Fallah v The Queen - [2010] NSWCCA 212

New South Wales
Court of Criminal Appeal

CITATION: FALLAH v THE QUEEN [2010] NSWCCA 212

HEARING DATE(S): 27 August 2010

JUDGMENT DATE:
22 September 2010

JUDGMENT OF: Basten JA at 1; Hall J at 49; Price J at 50

DECISION: (1) Grant leave to appeal against the conviction on the first count on the indictment of 2 February 2009.
(2) Dismiss the appeal.

CATCHWORDS: APPEAL – criminal – appeal against conviction – whether verdict unreasonable in light of acquittals on 4 other counts, including one offence which was alleged to have occurred during the same incident as the convicted offence – whether conviction unsupported by evidence - APPEAL – criminal – appeal against conviction – whether trial judge put defence case adequately in summing up to jury – no further direction sought at trial – leave required – Criminal Appeal Rules, r 4 - PROCEDURE – criminal – appeal against conviction – verdict unreasonable or not supported by evidence – not on question of law alone – leave required – Criminal Appeal Act 1912 (NSW), s 5 - WORDS AND PHRASES – "question of law alone" - Criminal Appeal Act 1912 (NSW), s 5

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Criminal Appeal Act 1912 (NSW), s 5
Criminal Appeal Rules, r 4

CATEGORY: Principal judgment

CASES CITED: Alford v Magee [1952] HCA 3; 85 CLR 437
Carlton v The Queen [2008] NSWCCA 244; 189 A Crim R 332
Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339
Jones v The Queen [1997] HCA 56; 191 CLR 439
Mackenzie v The Queen [1996] HCA 35; 190 CLR 348
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
RPS v The Queen [2000] HCA 3; 199 CLR 620
Smith v Regina [2007] NSWCCA 156
TK v R [2009] NSWCCA 151; 74 NSWLR 299

PARTIES: Ali Fallah – Applicant
The Queen – Respondent

FILE NUMBER(S): CCA 2008/1226

COUNSEL: A Francis – Applicant
N Noman – Respondent

SOLICITORS: S O’Connor, Legal Aid Commission – Applicant
S Kavanagh, Solicitor for Public Prosecution – Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/1226

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 27 March 2009

CCA 2008/1226

BASTEN JA
HALL J
PRICE J
22 September 2010

Ali FALLAH v THE QUEEN

Judgment

1 BASTEN JA: On 12 February 2009 Ali Fallah (“the applicant”) was convicted on one count of assault occasioning actual bodily harm inflicted upon the complainant, KZ. On 27 March 2009 the applicant was placed upon a bond to be of good behaviour for a period of 12 months, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”). There is no challenge to the sentence, the period of the bond having now expired and, indeed, having expired before the appeal against conviction was lodged on 4 May 2010.

2 The appeal raises two grounds, namely that the verdict was…

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 Fallah v The Queen

Details

AGLC: Fallah v The Queen [2010] NSWCCA 212
Case: [2010] NSWCCA 212
Decision Date: 22 September 2010

CaseChat Overview and Summary

The appeal in Fallah v The Queen involved the appellant, Fallah, who was convicted by a jury in the Supreme Court of New South Wales on one count of deprivation of liberty, following his acquittal on four other counts. The matter was heard in the Court of Criminal Appeal, where Fallah sought to challenge the conviction on the grounds that it was unreasonable, given his acquittal on other counts that related to the same incident, and that it was unsupported by evidence. Additionally, Fallah argued that the trial judge did not adequately put the defence case in the summing up to the jury.

The legal issues before the Court of Criminal Appeal included whether the conviction was unreasonable or unsupported by evidence, and whether the trial judge adequately presented the defence case in the summing up to the jury. The Court had to consider the relevant provisions of the Criminal Appeal Act 1912 (NSW), particularly section 5, which stipulates that an appeal against conviction is not on a question of law alone, and the Criminal Appeal Rules, rule 4, which requires leave for certain appeals. The Court had to weigh these legal principles against the evidence presented and the arguments made by both parties.

In delivering its judgment, the Court of Criminal Appeal held that the appeal was not on a question of law alone and therefore required leave, as per section 5 of the Criminal Appeal Act 1912 (NSW). The Court also noted that Fallah had not sought a further direction from the trial judge during the trial, which would have provided an opportunity to address any deficiencies in the summing up. The Court concluded that the evidence supported the conviction, and the verdict was not unreasonable despite the acquittals on other counts. Consequently, the appeal was dismissed, and the conviction was upheld.

No further orders were made by the Court of Criminal Appeal. The decision in Fallah v The Queen reinforces the principle that an appeal against conviction is not on a question of law alone and requires leave, and it underscores the importance of ensuring that the defence case is adequately presented to the jury during the summing up.

Orders