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Issa v The Queen

Issa v The Queen

Case [2017] NSWCCA 188 2 August 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Issa v R [2017] NSWCCA 188
Hearing dates: 21 July 2017
Decision date: 02 August 2017
Before: Hoeben CJ at CL at [1]
Adamson J at [2]
Bellew J at [104]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal against aggregate sentence – damage to property intending thereby to pervert the course of justice – whether De Simoni principle infringed by taking into account foresight of consequences of damage to property – HELD – principle not infringed because more serious offences (ss 196 and 198 of Crimes Act 1900 (NSW)) require intention to cause consequences; recklessness as to consequences insufficient
STATUTORY INTERPRETATION – relevance of Second Reading Speech – can be used to construe provision but not determinative – express words of statute guide to legislative intent
Legislation Cited: Crimes Act 1900 (NSW), ss 18, 35, 112, 195, 196, 198, 319
Crimes Amendment Act 2007 (NSW), Sch 1
Crimes (Criminal Destruction and Damage) Amendment Act 1987 (NSW), Sch 1
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44, 53A, 54B
Criminal Procedure Act 1986 (NSW), ss 20, 27, 166, 168, 268
Interpretation Act 1987 (NSW), s 34
Cases Cited: Baines v R [2016] NSWCCA 132
Caristo v R [2011] NSWCCA 7
Cassidy v R [2012] NSWCCA 68
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
Josefski v R [2010] NSWCCA 41; (2010) 217 A Crim R 183
Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
Mulato v R [2006] NSWCCA 282
Mundine v R [2017] NSWCCA 97
Nasser v R [2017] NSWCCA 104
R v Chisari [2006] NSWCCA 19
R v Teremoana (1990) 54 SASR 30
R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Texts Cited: Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1987
Category: Principal judgment
Parties: Bill Issa (Applicant)
Regina (Respondent)
Representation:
Counsel:
M C Ramage QC (Applicant)
N Adams (Respondent)
Solicitors:
Jeffreys Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/26099 and 2013/245291
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

22 February 2016

Before:

Zahra DCJ

File Number(s):

2013/26099 and 2013/245291

Judgment

HOEBEN CJ at CL: I agree with Adamson J. I particularly agree with her Honour’s analysis of the mental element required for offences contrary to ss 195, 196 and 198 of the Crimes Act 1900 (NSW).
ADAMSON J: The applicant seeks leave to appeal against the aggregate sentence imposed on him by Zahra SC DCJ in the District Court at Sydney on 22 February 2016.
The applicant was found guilty after…

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 Issa v The Queen

Details

AGLC: Issa v The Queen [2017] NSWCCA 188
Case: [2017] NSWCCA 188
Decision Date: 02 August 2017

CaseChat Overview and Summary

The appellant, Issa, was found guilty of damaging property with the intention to pervert the course of justice. He appealed against his aggregate sentence, arguing that the principle set out in De Simoni was infringed by the trial judge's consideration of the consequences of the damage to property. The case was heard by the High Court of Australia. Issa contended that the trial judge erred in taking into account the foresight of the consequences of the damage to property, arguing that this infringed the principle set out in De Simoni. He also argued that the trial judge incorrectly interpreted the relevant statutory provisions by considering the Second Reading Speech.

The High Court considered whether the principle in De Simoni was infringed by the trial judge's consideration of the consequences of the damage to property. The Court found that the principle was not infringed because the more serious offences under sections 196 and 198 of the Crimes Act 1900 (NSW) require an intention to cause the consequences, whereas recklessness as to the consequences is insufficient. The Court also found that the Second Reading Speech could be used to construe the statutory provisions but was not determinative of legislative intent. The express words of the statute were the best guide to legislative intent.

The appeal was dismissed by the Court. The Court found that the trial judge did not err in taking into account the foresight of the consequences of the damage to property, and that the Second Reading Speech was not determinative of legislative intent. The express words of the statute were the best guide to legislative intent, and the trial judge's interpretation of the statutory provisions was correct. The Court upheld the appellant's aggregate sentence.

Orders