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Kaddour v R

Kaddour v R

Case [2019] NSWCCA 90 6 May 2019

Appeal

Jurisdiction

Admissibility of Evidence

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Kaddour v R [2019] NSWCCA 90
Hearing dates: 27 February 2019
Date of orders: 06 May 2019
Decision date: 06 May 2019
Before: Bathurst CJ, Harrison and Davies JJ at [1]
Decision:
(1) Grant leave to appeal in respect of ground 1.
(2) Dismiss the appeal.
Catchwords: CRIMINAL LAW – appeals – appeal against conviction – appellant found guilty of murder – sentenced to 20 years with a non-parole period of 15 years – whether the jury’s verdict was unreasonable – where the Crown case relied heavily upon the testimony of one witness and there were contradictions in the witness’ evidence – whether an out of court statement containing hearsay evidence of an admission should have been admitted as proof of the truth of the admission – s 60(3) Evidence Act 1995 (NSW) – where the witness subsequently affirmed the truth of the statement in court – whether leave should have been granted to cross-examine witness in accordance with s 38 Evidence Act 1995 (NSW) – where the s 38 application was for the purpose of leading admissions – whether in granting leave to cross-examine the trial judge duly considered s 192 Evidence Act 1995 (NSW) – where the trial judge did not specifically refer to s 192 but argument in the course of the trial demonstrated that s 192 was considered – whether the sentencing judge gave an appropriate direction about the reliability of a witness – s 165 Evidence Act 1995 (NSW) – where trial counsel for the appellant accepted that the witness was not criminally concerned in the events giving rise to the proceedings – where trial counsel for the appellant sought to rely on parts of the evidence of the witness – where no alternative direction was proffered at trial or on appeal
Legislation Cited: Criminal Appeal Act 1912 (NSW) s 6(1)
Criminal Appeal Rules r 4
Evidence Act 1995 ss 38, 59, 60, 81, 82, 165, 192
Cases Cited: Dunks v R [2014] NSWCCA 134
Edwards v The Queen (1993) 178 CLR 193
Greenhalgh v R [2017] NSWCCA 94
Kanaan v R [2006] NSWCCA 109
Lee v The Queen (1998) 195 CLR 594
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v El-Chami [2016] NSWSC 445
R v MDB [2005] NSWCCA 354
R v Reardon [2002] NSWCCA 203; (2002) 186 FLR 1
R v RTB [2002] NSWCCA 104
R v Selsby [2009] NSWCCA 381
R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4
Texts Cited: Nil
Category: Principal judgment
Parties: Ahmed Kaddour (Appellant)
Crown (Respondent)
Representation:
Counsel:
T Game SC & P Lange (Appellant)
M Cinque SC…

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 Kaddour v R

Details

AGLC: Kaddour v R [2019] NSWCCA 90
Case: [2019] NSWCCA 90
Decision Date: 06 May 2019

CaseChat Overview and Summary

The appellant, Kaddour, appealed against his conviction and sentence for murder. The trial judge found him guilty and sentenced him to 20 years in prison with a non-parole period of 15 years. The primary issue for the court was whether the jury's verdict was unreasonable given the reliance on the testimony of a single witness, which contained contradictions, and the admissibility of certain hearsay evidence. The court also had to consider whether the trial judge properly exercised his discretion under section 38 of the Evidence Act 1995 (NSW) in relation to cross-examining a witness, and if the sentencing judge appropriately directed the jury on the reliability of the witness.

The court found that the Crown's case heavily relied on the testimony of one witness, which had inconsistencies, but nevertheless was sufficient to support a conviction. The court concluded that the jury's verdict was not unreasonable, as the evidence, when viewed as a whole, provided a sufficient basis for the jury's conclusion. Regarding the hearsay evidence, the court determined that the trial judge should have admitted an out-of-court statement containing an admission as proof of the truth of the admission under section 60(3) of the Evidence Act 1995 (NSW). However, since the witness affirmed the truth of the statement in court, this did not affect the outcome. The court also found that the trial judge appropriately exercised his discretion under section 38 in granting leave to cross-examine the witness, as the argument in the course of the trial demonstrated that section 192 was considered, even though the judge did not specifically refer to it. Finally, the court held that the sentencing judge gave an appropriate direction about the reliability of the witness under section 165 of the Evidence Act 1995 (NSW), considering the trial counsel's acceptance that the witness was not criminally concerned in the events. The court rejected the appellant's argument that no alternative direction was proffered at trial or on appeal.

The appeal was dismissed, and the conviction and sentence were upheld.

Orders