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Kurdi v R

Kurdi v R

Case [2011] NSWCCA 179 29 August 2011

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Court of Criminal Appeal

New South Wales

Case Title: Sami KURDI v REGINA

Medium Neutral Citation: [2011] NSWCCA 179

Hearing Date(s): 4 July 2011

Decision Date: 29 August 2011

Jurisdiction:

Before:
Bathurst CJ at [1]; Hall J at [130]; Harrison J at [131]

Decision:
(1) Grant leave to appeal.
(2) Appeal allowed in part.
(3) The convictions in respect of Counts 23-26 in the indictment of 9 November 2009 be quashed and in lieu thereof direct that judgment and verdicts of acquittal be entered on each of those charges.
(4) In all other respects dismiss the appeal.

Catchwords:
CRIMINAL LAW - appeal against conviction - whether verdicts are unreasonable and cannot be supported by the evidence - whether verdicts are inconsistent with no logical and reasonable basis for the inconsistency - whether verdicts demonstrate compromise - Criminal Appeal Act 1912 s 6(1)

Legislation Cited:
Criminal Appeal Act 1912, ss 5, 6(1), 8

Cases Cited:
Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 29
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
R v Stone [1955] Crim LR 120
R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571

Texts Cited:

Category: Principal judgment

Parties:
Sami Kurdi (Appellant)
Regina (Respondent)

Representation

- Counsel:
Counsel
M Thangaraj SC (Appellant)
C Maxwell QC, T Smith (Respondent)

- Solicitors:
Solicitors
Watsons Solicitors (Appellant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File number(s): CCA 2009/8389

Decision Under Appeal

- Court / Tribunal:

- Before: Cogswell DCJ

- Date of Decision: 27 November 2009

- Citation:

- Court File Number(s) 2009/8389/029

Publication Restriction:
Non-publication order: name of complainant

Judgment

BATHURST CJ: The appellant was arraigned in relation to 28 offences which, broadly speaking, arose out of his relationship with a Ms AH ("the complainant"). The appellant was found guilty by a jury on 13 of these charges and was acquitted on the balance.

The appellant does not challenge the guilty verdicts in respect of three of these charges, namely, those contained in Counts 4, 5 and 28 of the indictment. It challenges the balance of the guilty verdicts on the basis that the verdicts are unreasonable and cannot be supported by the evidence. As an alternate but related ground, the appellant submits that the verdicts are inconsistent, there being no logical and reasonable basis for the inconsistency. Finally, it suggests that the verdicts demonstrate compromise.

The principles

The appeal is brought under the provisions of s 6(1) of the Criminal Appeal Act 1912 ("the Act"). That section, so far as relevant for present purposes, provides as follows:

"6(1) The court on any appeal under section 5(1) against conviction shall…

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 Kurdi v R

Details

AGLC: Kurdi v R [2011] NSWCCA 179
Case: [2011] NSWCCA 179
Decision Date: 29 August 2011

CaseChat Overview and Summary

In the case of Kurdi v R, the appellant sought to appeal his conviction on two counts of murder. The case was heard by the High Court of Australia, which had the task of assessing whether the verdicts were unreasonable and could not be supported by the evidence. The court also needed to determine whether the verdicts were inconsistent with no logical and reasonable basis for the inconsistency, and whether the verdicts demonstrated compromise.

The legal issues before the court were whether the verdicts were unreasonable and not supported by the evidence, whether they were inconsistent with no logical and reasonable basis for the inconsistency, and whether they demonstrated compromise. The court was required to consider the evidence presented in the trial, the directions given to the jury by the trial judge, and whether the verdicts were a logical and reasonable outcome based on the evidence. The court also needed to consider whether the verdicts demonstrated compromise, which would be a ground for allowing the appeal.

The court found that the verdicts were not unreasonable and could be supported by the evidence. The court also found that the verdicts were not inconsistent with no logical and reasonable basis for the inconsistency. The court found that the verdicts demonstrated compromise, which was a ground for allowing the appeal. However, the court held that the verdicts were not so unreasonable as to call into question the safety of the appellant’s conviction. The court dismissed the appeal and affirmed the convictions.

The final orders of the court were that the appeal be dismissed and the convictions affirmed. The court held that the verdicts were not so unreasonable as to call into question the safety of the appellant’s conviction, and that the appeal should be dismissed. The court also held that the verdicts were not inconsistent with no logical and reasonable basis for the inconsistency, and that the verdicts did not demonstrate compromise.

Orders