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Hadba v The Queen

Hadba v The Queen

Case [2004] ACTSC 62 27 July 2004

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NOUHAD HADBA v THE QUEEN [2004] ACTSC 62 [2004] (27 July 2004)

CRIMINAL LAW – allegation of automatism due to intoxication – interpretation of ss 338 and 339 of the Crimes Act 1900 (ACT) – intoxication due to combination of alcohol and drugs – some taken in exceptional circumstances specified in s 338(2) – whether intoxication self-induced – general principles.
APPEALS – effect of s 216 of the Magistrates Court Act 1930 (ACT) staying sentence pending appeal – subsequent period on remand not counting as part of sentence – whether power upon dismissal of appeal to adjust sentence to take such periods into account.
BAIL – requirement that person convicted and sentenced to term of imprisonment not be granted bail save in special or exceptional circumstances – whether risk of serving longer period in custody than that contemplated in sentence a special or exceptional circumstance.

Crimes Act 1900 (ACT), ss 61 (2), 338(2), 339
Supreme Court Act 1933 (ACT), ss 13, 20
Bail Act 1992 (ACT), s 9
Magistrates Court Act 1930 (ACT), ss 216(a), 218
Evidence Act 1995 (Cth)
Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 28, 48A
Commonwealth of Australia Constitution Act Chpt III
Kable v Director of Public Prosecutions (1996) 189 CLR 51
March v E & MH StramarePty Ltd (1991) 171 CLR 506
Warramunda Village Inc v Pryde (2002) 116 FCR 58
Director of Public Prosecutions v Majewski [1977] AC 443
R v O’Connor (1979–1980) 146 CLR 64
R v Grant (2002) 55 NSWLR 80
Edwards v Macrae (1991) 14 MVR 193
Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Hoffman v Chief of Army [2004] FCAFC 148

APPEAL FROM THE MAGISTRATES COURT

No SCA 16 of 2004

Judges: Higgins CJ, Crispin and Gyles JJ
Supreme Court of the ACT
Date: 27 July 2004

IN THE SUPREME COURT OF THE       )
  )          No. SCA 16 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

APPEAL FROM THE MAGISTRATES COURT

BETWEEN:NOUHAD HADBA
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Higgins CJ, Crispin and Gyles JJ
Date:  27 July 2004
Place:  Canberra

THE COURT ORDERS THAT:

the appeal be dismissed;
the conviction and the sentence be affirmed with such sentence to be taken to have commenced 31 days prior to this date.

IN THE SUPREME COURT OF THE       )
  )          No. SCA 16 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

APPEAL FROM THE MAGISTRATES COURT

BETWEEN:NOUHAD HADBA
Appellant

AND:THE QUEEN
Respondent

Judges:  Higgins CJ, and Crispin J
Date:  27 July 2004
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ and CRISPIN J:

This is an appeal against a decision of Magistrate Fryar, convicting the appellant of an offence under s 61 (2) of the Crimes Act 1900 (ACT) by committing an indecent assault upon a person then between 10 and 16 years of age. The appellant also appeals against the perceived severity of the sentence…

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 Hadba v The Queen

Details

AGLC: Hadba v The Queen [2004] ACTSC 62
Case: [2004] ACTSC 62
Decision Date

CaseChat Overview and Summary

In the case of Nouh Hadba v The Queen, the appellant, Nouh Hadba, was convicted by Magistrate Fryar of an indecent assault on a 14-year-old girl and sentenced to 15 months imprisonment, with the sentence suspended after six months. The appellant appealed against both the conviction and the perceived severity of the sentence. The appeal was referred to the Full Court of the Supreme Court of the Australian Capital Territory, raising questions about the effect of s 9 of the Bail Act 1992 (ACT) in cases where s 216(1) of the Magistrates Court Act 1930 (ACT) applies and the power of the Supreme Court to relieve an unsuccessful appellant of the need to serve the whole of the sentence appealed from, even if they have already spent a lengthy period in custody due to refusal of bail pending the appeal.

The Full Court found that the Magistrate's decision to convict the appellant was correct, as the evidence adduced by the appellant was insufficient to raise a triable issue as to whether his intoxication came about as a consequence of one or more of the exceptional factors specified in s 338(2) of the Crimes Act 1900 (ACT). The court also found that the intoxication did not raise a reasonable doubt as to whether the appellant's actions were voluntary and intentional. The Full Court affirmed the conviction and sentence, ordering that the starting date be backdated by 31 days to reflect the fact that the appellant had already been detained in custody for the whole of the period between 24 February 2004, when initially sentenced, and 26 March 2004, when released on bail.

The Full Court further found that s 218 of the Magistrates Court Act 1930 confers ample jurisdiction upon the Supreme Court to vary the sentence appealed from in order to ensure that any periods spent in custody pending the appeal are properly taken into account. The court dismissed the appeal and affirmed the conviction and sentence, with the starting date backdated by 31 days.

Orders