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Habib v The Queen

Habib v The Queen

Case [2015] NSWCCA 261 25 September 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Habib v R [2015] NSWCCA 261
Hearing dates: 22 September 2015
Decision date: 25 September 2015
Before: Hoeben CJ at CL at [1]
Price J at [41]
Button J at [42]
Decision:
Leave to rely on ground of appeal pursuant to r 4 of the Criminal Appeal Rules is refused.

Catchwords: CRIMINAL LAW – conviction appeal – wound with intent to cause grievous bodily harm – whether error in good character direction – whether good character direction undermined by qualification – point not taken at trial – need to rely upon r 4 – very low chance of any misunderstanding by jury – no error in good character direction – no miscarriage of justice nor did offender lose a chance of acquittal which was fairly open – leave to rely upon r 4 refused.
Legislation Cited: Criminal Appeal Rules - NSW
Cases Cited: Jubraeel v R [2015] NSWCCA 131
Melbourne v R [1999] HCA 32; 198 CLR 1
R v Alkaitis [2004] EWCA Crim 1072
Regina v Aziz [1996] AC 41
Category: Principal judgment
Parties: Ramez Najim Habib – Applicant
Regina – Respondent Crown
Representation:
Counsel:
P Lange – Applicant
M Cinque – Respondent Crown
Solicitors:
Lawyerscorp – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/074483
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20 November 2014

Before:

Berman SC DCJ

File Number(s):

2013/074483

Judgment

HOEBEN CJ at CL:

Offence and sentence

In July and August 2014 the applicant was tried before Berman SC DCJ and a jury for attempting to wound his cousin, Sleiman Chidiac, with intent to cause grievous bodily harm (count 1) and for recklessly wounding Nowell Chidiac (Sleiman Chidiac’s sister-in-law) (count 2) or alternatively assault occasioning actual bodily harm to Nowell Chidiac (count 3). The applicant was convicted of count 1, but acquitted of counts 2 and 3.

The applicant was sentenced to imprisonment with a non-parole period of 18 months, commencing 20 November 2014 and expiring 19 May 2016, with a balance of term of 18 months expiring 19 November 2017.
The applicant has appealed against his conviction on the following ground:

Ground 1 – His Honour erred in directing the jury that it could bear in mind the possible commission of other offences by the applicant when considering his character.

The applicant concedes that this asserted error was not raised at trial and accordingly he requires a grant of leave pursuant to r 4 of the Criminal Appeal Rules.

Case for the Crown and defence

In 2006 a dispute arose between the applicant and his cousin Sleiman Chidiac over a large tiling job at Parramatta Westfield Shopping Centre. Related civil proceedings were resolved at Parramatta District Court in 2012 in Mr Chidiac’s favour. The applicant continued to believe that Mr Chidiac owed him approximately $300,000 - $350,000.
The applicant and Sleiman Chidiac lived near to each other in Croydon. The applicant’s…

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 Habib v The Queen

Details

AGLC: Habib v The Queen [2015] NSWCCA 261
Case: [2015] NSWCCA 261
Decision Date: 25 September 2015

CaseChat Overview and Summary

The appellant, Habib, appealed against his conviction for wounding with intent to cause grievous bodily harm. The case was heard in the High Court of Australia. Habib argued that the trial judge had erred in the directions given to the jury regarding his good character, and that this error constituted a miscarriage of justice. The central issue before the court was whether the trial judge's directions to the jury about the appellant's good character contained an error that undermined the purpose of the direction, and whether this error deprived the appellant of a real chance of acquittal.

The court considered whether the trial judge's direction, which included a qualification about the appellant's good character, constituted an error that undermined the purpose of the direction. The court noted that the appellant did not object to the direction at trial and therefore needed to rely on the common law rule in r 4. The court held that there was a very low chance that the jury misunderstood the direction and therefore found no error in the direction given to the jury. The court further held that the alleged error did not result in a miscarriage of justice nor did it deprive the appellant of a real chance of acquittal that was fairly open on the evidence.

In conclusion, the court found that the trial judge's direction to the jury did not contain an error that undermined the purpose of the direction, and therefore dismissed the appeal. The court refused to grant leave to rely on the common law rule in r 4, finding that there was no miscarriage of justice and no deprivation of a real chance of acquittal.

Orders