Faraj v R - [2022] NSWCCA 31

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Faraj v R [2022] NSWCCA 31
Hearing dates: 11 February 2022
Decision date: 23 February 2022
Before: Gleeson JA at [1]; Harrison J at [2]; Adamson J at [3]
Decision:
(1) Grant leave to the applicant pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to appeal against his convictions.
(2)   Dismiss the appeal against the convictions.
(3)   Grant leave to the applicant to appeal against sentence.
(4)   Dismiss the appeal against sentence.

Catchwords:
APPEALS — From jury verdict — Misdirection or non-direction — whether an anti-tendency direction was required — where trial counsel did not seek an anti-tendency direction — whether trial judge erred by not giving direction
SENTENCING — Appeal against sentence — whether fact on which sentence was based was proved beyond reasonable doubt — whether it was open to trial judge to find existence of fact beyond reasonable doubt
SENTENCING — Appeal against sentence — whether trial judge erred in assessing prospects of rehabilitation — whether it was open to trial judge to assess prospects as slim

Legislation Cited:
Crimes Act 1900 (NSW), s 193B
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Evidence Act 1995 (NSW), s 97
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894
Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
Quach v The Queen [2002] NSWCCA 519; (2002) 137 A Crim R 345
R v Isaacs (1997) 41 NSWLR 374
Sultana v R (1994) 74 A Crim R 27
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Category: Principal judgment
Parties: Adib Hassib Faraj (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC / P Lange (Applicant)
E Balodis (Respondent)
Solicitors:
Bannisters Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2015/370002
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

3 December 2018

Before:

Sutherland SC DCJ

File Number(s):

2015/370002

Judgment

GLEESON JA: I agree with Adamson J.
HARRISON J: I agree with Adamson J.
ADAMSON J: Adib Hassib Faraj (the applicant) was convicted of all six counts on the indictment following a trial by jury before Sutherland SC DCJ (the trial judge) between 30 April 2018 and 17 May 2018. He seeks leave to appeal against his convictions on the following ground:

“His Honour erred in failing to direct the jury on the manner in which the evidence of other alleged drug dealing by the applicant could be employed in its reasoning.”

In the alternative, he seeks leave to appeal against the aggregate sentence of 13 years’ imprisonment with a non-parole period of 9 years on the following grounds:

“1. His Honour erred in sentencing the applicant on the basis that counts 1-3 involved the…

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 Faraj v R

Details

AGLC: Faraj v R [2022] NSWCCA 31
Case: [2022] NSWCCA 31
Decision Date: 23 February 2022

CaseChat Overview and Summary

The case of Faraj v R involves an appeal against the verdict and sentence imposed by the trial judge. The appellant was convicted of various drug-related offences and was subsequently sentenced. The appellant contests both the verdict and the sentence, alleging that the trial judge erred in not directing the jury on an anti-tendency and in assessing his prospects of rehabilitation. The appeal was heard by the High Court of Australia.

The primary legal issue before the court was whether the trial judge erred in not providing an anti-tendency direction to the jury, despite the trial counsel not seeking such a direction. The court examined whether the trial judge was required to give an anti-tendency direction even in the absence of a request from the defence. Additionally, the court considered whether the fact upon which the sentence was based was proved beyond reasonable doubt and whether it was open to the trial judge to find the existence of that fact beyond reasonable doubt. The court also assessed whether the trial judge erred in evaluating the appellant's prospects of rehabilitation and whether it was permissible for the trial judge to conclude that these prospects were slim.

In its decision, the court found that while the trial judge was not obligated to provide an anti-tendency direction without a request from the defence, the failure to do so did not necessarily constitute an error. The court held that the trial judge was entitled to find the fact upon which the sentence was based beyond reasonable doubt, given the evidence presented. Furthermore, the court concluded that it was open to the trial judge to assess the appellant's prospects of rehabilitation and determine that they were slim. The appeal against both the verdict and the sentence was dismissed.

The court made no specific orders, as the appeal was dismissed, and the original verdict and sentence stood.

Orders