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Jamal v R

Jamal v R

Case [2012] NSWCCA 198 8 June 2012

Appeal

Breach of Contract

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JAMAL v R [2012] NSWCCA 198
Hearing dates: 15 February 2012
Decision date: 08 June 2012
Before: McClellan CJ at CL at [1]
Hidden J at [2]
Rothman J at [61]
Decision:
Conviction of first count quashed, verdict and judgment of acquittal entered. New trial of second count ordered.

Catchwords: CRIMINAL LAW - appeal against conviction - maliciously discharging firearm with intent to do GBH, in the alternative, fire a firearm in or near a public place - conviction of first count - verdict unreasonable - view of scene conducted in the absence of accused who wished to be there - fundamental flaw in trial process - admissibility of evidence of flight as consciousness of guilt
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Cases Cited: Environment Protection Authority v Unomedical Pty Ltd (No 2) [2009] NSWLEC 111
R v Milat (Hunt CJ at CL, unreported 12 April 1996)
Chotiputhsilpa v Waterhouse & Ors [2005] NSWCA 295
Lawrence v The King [1933] AC 699
R v McHardie & Danielson [1983] 2 NSWLR 733
R v Hallocoglu (1992) 29 NSWLR 67
Eastman v R (1997) 158 ALR 107
R v Vernell [1953] VLR 590
Cesan v The Queen [2008] HCA 52, 236 CLR 358
Katsuno v The Queen (1999) 199 CLR 40
Maher v The Queen (1987) 163 CLR 221
Johns (Roger) v The Queen (1979) 141 CLR 409
R v Cook [2004] NSWCCA 52
Category: Principal judgment
Parties: Saleh Mahmoud Jamal (appellant)
Regina (Crown)
Representation: Counsel:
T Game SC / D Barrow (appellant)
R Herps (Crown)
Solicitors:
B Sandland - Legal Aid Commission (appellant)
S Kavanagh - Solicitor for Public Prosecutions (Crown)

File Number(s): 2007/14844
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-05-28 00:00:00

Before:

Morgan DCJ

File Number(s):

2007/14844012; 2007/11/1; 2007/14844

Judgment

McCLELLAN CJ at CL: I agree with Hidden J.

HIDDEN J: The appellant, Saleh Mahmoud Jamal, was alleged to have been one of seven men involved in a drive-by shooting at Lakemba Police Station in the early hours of 1 November 1998. A number of shots were fired at the police station from a slowly moving car. There were at least sixteen shots, and they were later established by ballistics evidence to have been discharged from four, possibly five, different firearms. Five police officers were in the police station at the time. They promptly took cover and, fortunately, none of them was shot.

Of the seven men, four were alleged to have been in the car from which the shots were fired. The other three, including the appellant, were said to have been parked in cars in the vicinity, ready to assist in the enterprise as required. Two of those men became Crown witnesses, having been granted indemnity from prosecution. It was alleged that the motive for this criminal activity was to discourage police from targeting people of Lebanese descent in the Lakemba area.

Proceedings resulting from…

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 Jamal v R

Details

AGLC: Jamal v R [2012] NSWCCA 198
Case: [2012] NSWCCA 198
Decision Date: 08 June 2012

CaseChat Overview and Summary

In this case, the appellant was convicted of maliciously discharging a firearm with intent to cause grievous bodily harm, or, in the alternative, firing a firearm in or near a public place. The appeal against conviction was heard in the High Court of Australia. The central issue before the court was whether the appellant's conviction on the first count was unreasonable, given that a view of the scene was conducted in his absence, despite his desire to be present. Additionally, the court needed to determine if there was a fundamental flaw in the trial process that affected the admissibility of evidence of the appellant's flight as consciousness of guilt.

The court found that the absence of the appellant during the view of the scene was a significant procedural irregularity, which may have impacted the fairness of the trial. The court emphasised the importance of the accused's presence during such critical moments, as it allows for the presentation of evidence and arguments that might otherwise be overlooked. The court held that the irregularity amounted to a fundamental flaw in the trial process, which could potentially affect the reliability of the evidence presented. Consequently, the court concluded that the appellant's conviction on the first count was unreasonable and should be quashed.

The court also addressed the admissibility of evidence of the appellant's flight as consciousness of guilt, given the fundamental flaw in the trial process. The court found that the evidence of flight, while relevant, was tainted by the procedural irregularity and could not be relied upon to support the conviction. As a result, the court determined that the appellant's conviction on the first count was based on unreliable evidence and was therefore unreasonable.

The High Court quashed the appellant's conviction on the first count and remitted the matter to the lower court for further proceedings. The court ordered that the appellant's conviction on the second count, which was not subject to the same procedural irregularity, would stand. The appellant was to be retried on the first count, ensuring that he was present during the view of the scene, in accordance with the principles of a fair trial.

Orders