Medium Neutral Citation: HAMED v REGINA [2011] NSWCCA 219
Hearing dates: Wednesday 11 May 2011
Decision date: 30 September 2011
Before: Johnson J at [1]
Hall J at [2]
Price J at [133]
Decision:
(1) Appeal against conviction dismissed.
(2) Leave to appeal against sentence granted.
(3) The appeal against sentence dismissed.

Catchwords: CRIMINAL LAW - appeal against conviction - robbery in company - identity of other offenders unknown - applicant not identified during robbery - circumstantial evidence - whether monies stolen were "owned" by the victim - whether verdict unreasonable
CRIMINAL LAW - appeal against conviction - circumstantial evidence - DNA evidence - competing DNA evidence - whether verdict unsafe or unreasonable
CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - whether De Simoni principle contravened - whether trial judge correctly took into account the weapon - trial judge entitled to take into account circumstances of aggravation and to assess objective seriousness
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: CW v R [2011] NSWCCA 45
Flack v R [2011] NSWCCA 167
Ilich v The Queen (1986-1987) 162 CLR 110
Rasic & Ors v R [2009] NSWCCA 202
Raumakita v R [2011] NSWCCA 126
R v De Simoni (1981) 147 CLR 383
R v Dinsdale (2002) 202 CLR 321
R v Li (CCA unreported, 9 July 1997)
R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101
SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
Category: Principal judgment
Parties: GHAZWAN HAMED v REGINA
Representation: C: V Lydiard
A: G I Foster
C: S Kavanagh
A: Phillip A Wilkins & Associates

File Number(s): 2009/40553
Decision under appeal

Date of Decision:

2010-06-10 00:00:00

Before:

Ashford DCJ

File Number(s):

2009/40553

Judgment

JOHNSON J: I agree with Hall J.

HALL J: The appellant by notice of appeal dated 31 January 2011 appeals in respect of a conviction by a jury on one count of robbery in company contrary to the provisions of s.97(1) of the Crimes Act 1900.

The trial commenced in the Parramatta District Court on 30 November 2009 and continued until 11 December 2009.

The Crown case alleged that the appellant was a participant in a robbery which occurred at the St Mary's Post Office, St Mary's, Sydney on 13 February 2009 as a result of which an amount of money was stolen.

The single charge in the indictment was in the following terms:-

"On 13 February 2009 at South St Mary's in the State of New South Wales, being in the company of a person whose identity is unknown, did rob Daxa Dilal of property belonging to Australia Post, namely, a sum of cash."

The Crown case was a circumstantial one.

Section 97(1) of the Crimes Act is in the following terms:-

" 97 Robbery etc or stopping a mail, being armed or in company

(1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with…

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 Hamed v Regina

Details

AGLC: Hamed v Regina [2011] NSWCCA 219
Case: [2011] NSWCCA 219
Decision Date: 30 September 2011

CaseChat Overview and Summary

The appeal involved the applicant, Hamed, against both his conviction and sentence for robbery in company. The case was heard in the Court of Appeal. Hamed was charged with robbing an individual in company, though the identities of the other offenders were unknown. Hamed was not identified during the robbery itself. The prosecution's case was based on circumstantial evidence, including DNA evidence found at the scene that matched Hamed's DNA.

The legal issues before the court included whether the verdict was unreasonable given the lack of direct identification and the circumstantial evidence. Additionally, the court had to consider whether the monies stolen were indeed owned by the victim, and whether the evidence provided was sufficient to support a conviction beyond reasonable doubt. The court also had to determine if the sentence imposed was manifestly excessive and whether it contravened the principles set out in De Simoni, particularly in relation to the weapon used during the crime and the circumstances of aggravation.

The Court of Appeal found that the trial judge was correct in their assessment of the evidence. The circumstantial evidence, including the DNA evidence and the totality of the circumstances, was sufficient to support a conviction. The court held that the verdict was not unreasonable and was properly based on the evidence presented. Regarding the sentence, the court determined that the trial judge correctly took into account the weapon and the circumstances of aggravation, and therefore the sentence was not manifestly excessive. The appeal against both the conviction and the sentence was dismissed.

Orders