Hoblos v The Queen - [2014] NSWCCA 20

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hoblos v R [2014] NSWCCA 20
Hearing dates: 22 November 2013
Decision date: 26 February 2014
Before: Hoeben CJ at CL at [1]
Blanch J at [2]
R A Hulme J at [3]
Decision:
Leave to appeal against conviction granted.
Appeal dismissed.

Catchwords: CRMINAL LAW - appeal against conviction - murder - whether misdirection as to liability of primary and secondary participants when only participation in issue at trial - verdict not unreasonable or unsupported by evidence
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules
Cases Cited: LP v R [2013] NSWCCA 330
Category: Principal judgment
Parties: Mohammed Hoblos (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr T Game SC (Applicant)
Ms H Wilson SC (Crown)
Solicitors:
Zahr & Zahr Lawyers
Solicitor for Public Prosecutions

File Number(s): 2009/266840
Decision under appeal

Jurisdiction:

9111

Date of Decision:

2012-05-08 00:00:00

Before:

Grove AJ

File Number(s):

2009/266840

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.

BLANCH J: I agree with R A Hulme J.

R A HULME J: Mohammed Hoblos ("the applicant") stood trial on a charge of murder before Grove AJ and a jury of 12 in February 2012. He was found guilty. He was sentenced to a term of imprisonment for 28 years with a non-parole period of 21 years. He now seeks leave to appeal but only against conviction.

The proposed appeal was initially based upon three grounds but only two were pressed at the hearing of the application: that the verdict was unreasonable and cannot be supported by the evidence and that the directions given to the jury by the trial judge concerning the applicant's liability for murder were wrong.

Leave to appeal is required because the first ground does not raise a question of law alone (s 5(1) of the Criminal Appeal Act 1912 (NSW)) and the second ground, even if it could be characterised as raising a question of law alone, raises an issue not raised at trial: r 4 of the Criminal Appeal Rules.

For the reasons that follow, neither ground can be sustained and, although leave should be granted, the appeal should be dismissed.

Principles concerning asserted unreasonable verdicts or verdicts that cannot be supported

McCallum J, usefully and succinctly summarised the principles recently in LP v R [2013] NSWCCA 330:

[10] In determining an appeal on that ground, the task for this Court is to make an independent assessment of the evidence both as to its sufficiency and its quality. The test is whether the Court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v R [1994] HCA 63; (1994) 181 CLR 487 at 493; MFI v R [2002] HCA 53; (2002) 213 CLR 606. However, the test is not one directed at assessing the legal question whether the evidence is capable of supporting the conviction.…

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 Hoblos v The Queen

Details

AGLC: Hoblos v The Queen [2014] NSWCCA 20
Case: [2014] NSWCCA 20
Decision Date: 26 February 2014

CaseChat Overview and Summary

The appeal arose from a conviction for murder, with the appellant challenging the correctness of the trial judge's direction to the jury regarding the liability of primary and secondary participants. The appellant was convicted of being an accessory after the fact to murder. The Court of Appeal was asked to determine whether the trial judge erred in his directions to the jury concerning the liability of primary and secondary participants when only participation in the crime was at issue at the trial. The central legal issue was whether the trial judge's directions to the jury contained any error, and if so, whether that error was significant enough to warrant a new trial.

The Court of Appeal considered the trial judge's directions in the context of the evidence presented and the arguments made by both parties. The Court noted that the trial judge had directed the jury that the appellant could be guilty of murder as an accessory after the fact if they were satisfied that the appellant had assisted or encouraged the principal offender in the commission of the crime. The Court of Appeal found that the trial judge's directions were not erroneous and did not misdirect the jury. The jury's verdict was not unreasonable or unsupported by the evidence, and the appeal was dismissed. The Court held that the trial judge's directions were sufficient to enable the jury to properly consider the evidence and determine the appellant's liability as an accessory after the fact. The Court of Appeal found no error in the trial judge's directions and upheld the conviction.

Orders