CITATION: Hajje v R [2006] NSWCCA 23 HEARING DATE(S): 16 November 2005
JUDGMENT DATE:
23 February 2006JUDGMENT OF: Simpson J at 1; Adams J at 105; Hoeben J at 106 DECISION: Appeal against conviction dismissed. CATCHWORDS: appeal against conviction - jury verdict - malicious wounding - complainant shot in calf during fracas involving a number of men and the use of three guns - whether verdict unreasonable - tendency evidence - credibility of prosecution witnesses - whether evidence of unrelated ammunition in the appellant's home was admissible - evidence wrongly admitted - no miscarriage of justice arising - directions to jury on identification evidence - unreliable evidence - directions to jury as to "the real issues" - directions as to credibility LEGISLATION CITED: Criminal Appeal Act 1904, s6
Evidence Act 1995, s56(2), s97, s116, s135, s137, s165(2)CASES CITED: Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
Domican v The Queen [1992] HCA 13; 173 CLR 555
Jones v The Queen [1997] HCA 12; 191 CLR 439
M v The Queen [1994] HCA 63; 181 CLR 487
R v Clarke (1997) 97 A Crim R 414
Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82PARTIES: Odeness Hajje - Appellant
Crown - RespondentFILE NUMBER(S): CCA 2005/1322 COUNSEL: J Dailly SC with D Price - Appellant
JA Girdham - RespondentSOLICITORS: Nyman Gibson Stewart - Appellant
S Kavanagh - RespondentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/0032 LOWER COURT JUDICIAL OFFICER: Shillington DCJ
2005/1322
Thursday 23 February 2006SIMPSON J
ADAMS J
HOEBEN J
1 SIMPSON J: On 26 August 2004 the appellant was arraigned in the District Court on an indictment containing three counts, all in the alternative. The counts were, in descending order, of malicious wounding with intent to cause grievous bodily harm; malicious wounding; and firing a firearm in a public place. On 8 September 2004, following a ten-day trial, the jury found the appellant not guilty of the first count, but guilty of the second. Obviously, the jury returned no verdict in respect of the third count. The appellant now appeals against the conviction. He has not sought leave to appeal against the sentence subsequently imposed.
2 The events the subject of the indictment took place on Wednesday 27 March 2002, in a suburban street in Bass Hill. At about 9.15 pm that night the complainant, Luke Watts, was shot in the left calf. It was the Crown case at trial that the appellant was the person who fired the gunshot; or, alternatively, that he was one of three men, all of whom shot at Watts in pursuance of a common design, and that, therefore, even if the appellant was not the person who actually fired the shot that struck Watts, he was guilty by reason of the doctrine of joint criminal enterprise. Given the way the case was conducted, the Crown accepted that the appellant could not be…
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- Hajje v R [2006] NSWCCA 23
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- [2006] NSWCCA 23
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CaseChat Overview and Summary
The court had to determine whether the jury's verdict was unreasonable, whether the evidence of unrelated ammunition was properly admitted, and whether the trial judge's directions to the jury on identification and credibility were appropriate. The court also had to consider whether the admission of this evidence and the directions given to the jury resulted in a miscarriage of justice. The court found that the verdict was not unreasonable, that the evidence of unrelated ammunition was wrongly admitted but did not result in a miscarriage of justice, and that the trial judge's directions to the jury on identification and credibility were appropriate. The Crown's cross-appeal was dismissed.
The court held that the verdict was open to the jury and was not unreasonable, despite the lack of direct evidence linking the appellant to the shooting. The court found that the trial judge had erred in admitting evidence of unrelated ammunition found in the appellant's home, but this error did not result in a miscarriage of justice. The court also held that the trial judge's directions to the jury on identification and credibility were appropriate, and that there was no miscarriage of justice arising from these directions. The appeal was dismissed, and the conviction was upheld. The Crown's cross-appeal was also dismissed.
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