Imnetu v Regina

Case [2006] NSWCCA 203

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      IMNETU v REGINA [2006]  NSWCCA 203

FILE NUMBER(S):
2006/437

HEARING DATE(S):               7 June 2006

DECISION DATE:     30/06/2006

PARTIES:
Joussef Tecle Imnetu (Appl)
The Crown

JUDGMENT OF:       McClellan CJ at CL Johnson J Latham J   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          2004/2875

LOWER COURT JUDICIAL OFFICER:     Newman AJ

COUNSEL:
T A Game SC (Appl)
D M L Woodburne (Crown)

SOLICITORS:
Giddy and Crittenden (Appl)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
APPEAL AGAINST CONVICTION
murder
joint criminal enterprise
circumstantial case
directions on inferences
directions given by way of example
exact words ‘hypothesis consistent with innocence’ not used
exact words ‘only rational inference’ not used
whether miscarriage of justice resulted from Crown comments on offender’s good character
comments indicating that the jury could place less weight on offender’s good character
CRIMINAL LAW
APPEAL AGAINST SENTENCE
whether error in assessment of culpability
whether offence correctly assessed as being above the mid-range of seriousness
level of involvement in the joint criminal enterprise
whether planning and offence committed in company were aggravating factors

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/437

McCLELLAN CJ at CL
JOHNSON J
LATHAM J

FRIDAY 30 JUNE 2006

IMNETU, Youssef Tecle  v  REGINA

Judgment

  1. McCLELLAN CJ at CL:  Youssef Tecle Imnetu was convicted of murder after a trial before Newman AJ and a jury. He was sentenced to an overall term of imprisonment of twenty-six and a half years with a non-parole period of twenty years. He appeals his conviction and seeks to appeal his sentence.

  2. The Crown case against the appellant was that he was party with Basheeruddin Mohammed (“Ben”) in a joint criminal enterprise to kill Shoukat Ali Mohammed (“the deceased”). The evidence as to motive was not entirely clear. However, the deceased had put up a $20,000 bond for Ben as a condition of Ben’s obtaining a bridging visa allowing him to remain in Australia. The deceased’s own bridging visa was about to expire which meant that he would shortly have to leave the country.

  3. The Crown case was that the deceased was killed in the appellant’s bedroom in a unit he shared with others at 13/187 Cleveland Street, Redfern, at some time between 2.13 pm and 8.15 pm on 29 June 2003. The primary mode of death was strangulation although the deceased was also given a large dose of heroin and was violently assaulted with a baseball bat, suffering a severe head injury. In the evidence of Dr Botterill the cause of death was given as strangulation with opiate intoxication described as a “significant contributing condition.”

  4. Ben did not stand trial with the appellant. He had left the country on 17 July 2003 after his visa had been cancelled.

  5. The case against the appellant was wholly circumstantial. Evidence of the movements of Ben, the appellant and the deceased on 29 June 2003 was available from video surveillance footage in the car park basement at…

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Details
AGLC
Imnetu v Regina [2006] NSWCCA 203
Case
[2006] NSWCCA 203
Decision Date

CaseChat Overview and Summary

The case of Imnetu v Regina involved an appeal against conviction for murder within a joint criminal enterprise framework. The appellant challenged the adequacy of the trial judge’s directions to the jury concerning inferences and circumstantial evidence, asserting that the judge failed to appropriately guide the jury on drawing rational inferences and considering hypotheses consistent with innocence. Additionally, the appellant argued that comments made by the prosecution regarding the offender's good character potentially prejudiced the jury, leading to a miscarriage of justice. The High Court of Australia was tasked with determining whether the trial judge's directions were sufficient and whether the prosecution's comments had an adverse impact on the trial's fairness.

The central legal issues before the court involved the sufficiency of the trial judge’s directions to the jury regarding the drawing of inferences from circumstantial evidence and whether these directions met the required standards. The court had to consider whether the trial judge's failure to explicitly state that an inference must be the only rational one available, as well as not mentioning a hypothesis consistent with innocence, constituted a miscarriage of justice. Furthermore, the court examined whether the prosecution's comments about the offender’s good character unfairly influenced the jury's perception and potentially prejudiced the appellant.

The High Court found that the trial judge's directions were adequate despite not using the exact phrases "only rational inference" or "hypothesis consistent with innocence." The court held that the judge had sufficiently emphasised the prosecution's burden of proof and provided detailed directions concerning circumstantial evidence, which sufficiently guided the jury. The court noted that the Crown's case was strong, and the appellant’s suggested hypothesis was not supported by the evidence. Regarding the comments about the offender's good character, the court concluded that they did not prejudice the jury against the appellant, as the comments merely indicated that the jury could place less weight on the good character if it conflicted with the evidence. Therefore, the appeal against conviction was dismissed.

The final orders of the court were that the appeal against conviction be dismissed, and the conviction for murder and other related charges were upheld. The court found no merit in the grounds of appeal presented by the appellant, affirming the jury’s verdict based on the evidence presented at trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There are two grounds of appeal in relation to the conviction.Ground 1 – The trial judge gave inadequate directions and erred in his directions on inferences and circumstantial evidence Although the trial judge emphasised to the jury that the onus of proof lay upon the prosecution which must prove the relevant elements of the offence beyond reasonable doubt and provided detailed directions with respect to circumstantial evidence, the appellant said they were inadequate. In particular it was submitted that because the judge did not tell the jury that before an inference could be drawn it had to be the only rational inference available (Knight v R (1992) 175 CLR 495 at 502-503) the directions given were inadequate and the trial miscarried. The appellant particularly emphasised the reasons of McHugh J in Stevens v R [2005] HCA 65 at [25] where his Honour said that because the prosecution case was a circumstantial case it required a direction to “the jury that, if there is any reasonable hypothesis consistent with innocence of the [accused], it is their duty to acquit.” The defence at the trial was confined to an argument that the appellant was not involved in the events until late in the evening when he acted under duress. On the appeal it was submitted that his Honour had failed to give the jury adequate guidance as to an hypothesis consistent with his innocence of the count of murder, because, so it was suggested, if the deceased had died at an early time in the sequence of events, by 4 pm, it was suggested the evidence of the appellant’s initial acts – going to the Rebel-sport store and adjusting cameras, was not sufficient to found a conviction for murder. This, so it was submitted, was an hypothesis consistent with innocence which had to be excluded before the appellant could be convicted. I have no doubt that this ground of appeal should be rejected. To my mind the submission now made by the appellant significantly understates the strength of the Crown case. That case was comprised of the early phone calls to and from the deceased, the journey to the Rebel-sport store to purchase the baseball bat and the sleeping bag, the manipulation of video surveillance cameras to avoid being filmed followed by a period of time when the deceased, Ben and the appellant were together undisturbed in the appellant’s flat. They were in the flat together for at least 49 minutes following which at 4.06 both the appellant and Ben are seen in the car park without the deceased. Ben has changed his clothes and they proceed to change the number plates on the deceased’s car while endeavouring to shield their activities from the video cameras. It was at 4.28 pm that Legarth arrived and stayed for about three hours. I accept that the overwhelming inference from this sequence of events is that the deceased had either died by about 4.00 pm or was seriously ill by this time. The medical evidence is also consistent with death by this time. The killing occurred in the appellant’s bedroom which was not accessed by Legarth whilst he was at the premises. The door was shut although for a period the appellant accessed the room.

Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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