Fazlilar v The King - [2023] NSWCCA 183

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fazlilar v R [2023] NSWCCA 183
Hearing dates: 30 June 2023
Date of orders: 26 July 2023
Decision date: 26 July 2023
Before: Beech-Jones CJ at CL, Fagan J, R A Hulme AJ
Decision:
(1) Extend time for filing the application for leave to appeal up to 16 December 2022.
(2) Leave to appeal granted.
(3) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction for murder – unreasonable verdict – where applicant fired a single gunshot into posterior aspect of the deceased’s left upper thigh – whether the jury ought to have had a reasonable doubt that the act causing death was deliberate – whether the jury ought to have had a reasonable doubt that the act was accompanied by an intention to cause grievous bodily harm – appeal dismissed

Legislation Cited:
Criminal Appeal Act 1912 (NSW)

Category: Principal judgment
Parties: Hasan Fazlilar (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Game SC & P Lange (Applicant)
M Millward (Respondent)
Solicitors:
Aquila Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/00349430
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

R v Fazlilar [2018] NSWSC 1663

Date of Decision:

28 September 2018

Before:

N Adams J

File Number(s):

2015/00349430

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was found guilty by a jury of the murder of Donovan Mileham on 14 November 2015. He sought leave to appeal his conviction on the sole ground that the verdict was unreasonable.

During the day on which the deceased was killed he and the applicant and one Dimarelis occupied a serviced suite located in the Sydney CBD and there consumed alcohol, cocaine and methamphetamine for several hours. Late in the afternoon the applicant obtained access to the deceased’s mobile phone, where he saw a number saved under the description “police crime”. The applicant confronted the deceased aggressively about that and called him a “dog”. The deceased was seated on a lounge with his knees drawn up to his chest. The applicant used his left hand to seize the deceased by the collar, slapped him across the face with his right hand and repeated the accusation that he was a “dog”. The applicant then drew a hand gun from his waistband and tapped the muzzle of it against the deceased’s left temple two or three times before lowering the gun and firing it into the posterior aspect of the deceased’s left upper thigh. The projectile entered the deceased pelvic cavity and severed a major blood vessel. The consequent internal blood loss was the direct cause of death, within minutes

The applicant conceded that it was open to the jury to have accepted Dimarelis’ account of what occurred in the suite, to the above effect. The applicant’s only contentions were that the jury ought to have had a reasonable doubt as to (1) whether he acted…

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 Fazlilar v The King

Details

AGLC: Fazlilar v The King [2023] NSWCCA 183
Case: [2023] NSWCCA 183
Decision Date: 26 July 2023

CaseChat Overview and Summary

The case of Fazlilar v The King involved an appeal against a conviction for murder. The applicant had fired a single gunshot into the posterior aspect of the deceased's left upper thigh, leading to the deceased's death. The applicant contended that the jury's verdict of guilty of murder was unreasonable and should not have been returned due to the lack of evidence suggesting the act was deliberate or accompanied by an intention to cause grievous bodily harm. The legal issues before the court were whether the jury should have entertained a reasonable doubt that the act causing death was deliberate and whether they should have had a reasonable doubt about the accompanying intention to cause grievous bodily harm.

The court examined the evidence presented at trial and the principles governing the assessment of a verdict's reasonableness. It found that the evidence supported the jury's conclusion that the shooting was deliberate and that the applicant's actions were accompanied by an intention to cause grievous bodily harm. The court noted that the placement and nature of the gunshot wound, as well as the applicant's conduct before and after the incident, provided sufficient basis for the jury to find the applicant guilty of murder. The court held that the jury had not erred in their verdict and that there was no basis to conclude that the verdict was unreasonable.

Accordingly, the appeal was dismissed. The court reaffirmed the jury's findings, confirming that the evidence supported the conclusion that the act causing death was deliberate and accompanied by the necessary intention. The court found no grounds to interfere with the jury's verdict, emphasising the importance of allowing the jury's assessment of the facts and circumstances to stand unless there was a clear error of law or a miscarriage of justice. The final orders of the court were that the appeal against conviction and sentence be dismissed, and the original conviction and sentence be upheld.

Orders