Hamed v Regina

Case [2011] NSWCCA 219


Court of Criminal Appeal


Supreme Court


New South Wales

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

  1. JOHNSON J: I agree with Hall J.

  1. 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.

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

  1. 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.

  1. 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."
  1. The Crown case was a circumstantial one.

  1. 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…

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Hamed v Regina [2011] NSWCCA 219
Case
[2011] NSWCCA 219
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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