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Jaghbir v R

Jaghbir v R

Case [2023] NSWCCA 175 12 July 2023

Appeal

Accessory Before the Fact

Causation

Circumstantial Evidence

Reasonable Doubt

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jaghbir v R [2023] NSWCCA 175
Hearing dates: 31 October 2022
Decision date: 12 July 2023
Before: Button J at [1];
McNaughton J at [201];
R A Hulme AJ at [205]
Decision:
(1) Leave to appeal against conviction granted
(2) Appeal dismissed

Catchwords:
CRIME – appeals – appeal against conviction – judge alone trial – accessory before the fact to murder – where deceased fatally shot by unknown intruders while asleep in apartment – where intruders entered apartment by unlocking front door with copied key in their possession – circumstantial case – finding that the applicant had provided the copied key to the intruders disputed – whether the verdict was unreasonable – whether Crown was obliged to prove beyond reasonable doubt that a named person had been one of the principal offenders– open to trial judge to return verdict of guilty – identification of particular person as one of the perpetrators not an indispensable intermediate fact – no requirement for identity of principal offender to be proven beyond reasonable doubt – sufficient that applicant believed person had been involved in the murder – leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW) s 346
Jury Directions Act 2015 (Vic) s 62

Cases Cited:
Burrell v The Queen [2009] NSWCCA 163
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
Dansie v The Queen [2022] HCA 25
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
Humphries v R [2015] NSWCCA 319
King v The Queen (1986) 161 CLR 423; [1986] HCA 59
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
R v Botrus (No 4) [2020] NSWSC 1449
R v Davidson [2009] NSWCCA 150
R v Jaghbir (No 3) [2020] NSWSC 1383
R v Merritt (1999) NSWCCA 29
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Slattery v R [2023] NSWCCA 117
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: Ahmed Jaghbir (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Game SC, P Lange, and E James (Applicant)
M Millward (Respondent)
Solicitors:
Abbas Jacobs Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/337859
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 1383

Date of Decision:

12 October 2020

Before:

Davies J

File Number(s):

2017/337859

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 12 October 2020, following an 11-day trial by judge alone, Mr Ahmed Jaghbir (the applicant) was found guilty of being an accessory before the fact to the murder by unknown persons of Mr Kemel Barakat (the deceased). The offending was said to have occurred between 2 March 2017 and 10 March 2017, during which time the applicant was…

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 Jaghbir v R

Details

AGLC: Jaghbir v R [2023] NSWCCA 175
Case: [2023] NSWCCA 175
Decision Date: 12 July 2023

CaseChat Overview and Summary

The case of Jaghbir v R involved an appeal against a conviction for being an accessory before the fact to murder. The matter was heard and dismissed by the High Court of Australia. The deceased was fatally shot by unknown intruders while asleep in their apartment. The intruders had gained entry by unlocking the front door with a copied key. The central dispute was whether the applicant, Jaghbir, had provided the copied key to the intruders, a fact that was disputed.

The primary legal issues before the court were whether the verdict was unreasonable and whether the Crown was required to prove beyond reasonable doubt that a named person had been one of the principal offenders. The court considered whether it was open to the trial judge to return a verdict of guilty based on the applicant's belief that a named person had been involved in the murder, without necessitating the identification of that person as one of the perpetrators. The court also examined the requirement for the identity of the principal offender to be proven beyond reasonable doubt.

The High Court held that it was open to the trial judge to return a verdict of guilty if it was satisfied that the applicant believed a named person had been involved in the murder. The identification of a particular person as one of the perpetrators was not an indispensable intermediate fact. The court ruled that there was no requirement for the identity of the principal offender to be proven beyond reasonable doubt, so long as the applicant believed that the named person had been involved. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders