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Hajje v R

Hajje v R

Case [2006] NSWCCA 23 23 February 2006

Appeal

Jurisdiction

Admissibility of Evidence

Causation

Compensatory Damages

Reliability of Evidence

Directions to Jury

Criminal Law

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CITATION: Hajje v R [2006] NSWCCA 23

HEARING DATE(S): 16 November 2005

JUDGMENT DATE:
23 February 2006

JUDGMENT 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 82

PARTIES: Odeness Hajje - Appellant
Crown - Respondent

FILE NUMBER(S): CCA 2005/1322

COUNSEL: J Dailly SC with D Price - Appellant
JA Girdham - Respondent

SOLICITORS: Nyman Gibson Stewart - Appellant
S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0032

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

2005/1322

SIMPSON J
ADAMS J
HOEBEN J
Thursday 23 February 2006

Odeness HAJJE v REGINA

Judgment

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…

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 Hajje v R

Details

AGLC: Hajje v R [2006] NSWCCA 23
Case: [2006] NSWCCA 23
Decision Date: 23 February 2006

CaseChat Overview and Summary

The appellant was convicted by a jury in the Supreme Court of New South Wales of malicious wounding with intent to maim, disfigure or disable, contrary to section 35(1) of the Crimes Act 1900 (NSW). The complainant was shot in the calf during a fracas involving several men and the use of three guns. The appellant appealed against his conviction on the basis that the verdict was unreasonable, the trial judge had improperly admitted evidence of unrelated ammunition found in his home, and the jury had been misdirected on the issues of identification and credibility. The Crown cross-appealed on the ground that the trial judge had misdirected the jury in relation to the real issues in the case and the reliability of the identification evidence.
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.

Orders