Mohamed v R - [2008] NSWCCA 45

New South Wales
Court of Criminal Appeal

CITATION: Mohamed v R [2008] NSWCCA 45

HEARING DATE(S): 11 February 2008

JUDGMENT DATE:
5 March 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 37; Simpson J at 38

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal against conviction - aggravated kidnapping and robbery in company - joint indictment of three co-accused - co-accused found not guilty - whether verdicts inconsistent - signifcantly different roles assumed by co-accused - whether verdict for robbery in company charge was unreasonable - whether jury should be directed in relation to alternative non-aggravated count - whether trial judge required to summarise all evidence for jury in summing-up

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986

CATEGORY: Principal judgment

CASES CITED: Domican v The Queen (1992) 173 CLR 555
McKenzie v The Queen (1996) 190 CLR 348
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Pemble v The Queen (1971) 124 CLR 107
R v BJB [2005] NSWCCA 441
R v Davis [1999] NSWCCA 15
R v King (2004) 59 NSWLR 515
R v Tubou [2001] NSWCCA 243
R v Williams (1999) 104 A Crim R 260
R v Zorad (1990) 19 NSWLR 91

TEXTS CITED: Who is telling the truth? Psychology, common sense and the law (2006) ALJ 655

PARTIES: Elyas Mohamed (Appellant)
The Crown

FILE NUMBER(S): CCA 2007/2931

COUNSEL: G D Wendler (Appellant)
N Adams (Crown)

SOLICITORS: Van Houten Law (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3057

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

LOWER COURT DATE OF DECISION: 4 April 2007

2007/2931

McCLELLAN CJ at CL
GROVE J
SIMPSON J
WEDNESDAY 5 MARCH 2008

MOHAMED, Elyas v R

Judgment

1 McCLELLAN CJ at CL: Elyas Mohamed appeals against his conviction in the Campbelltown District Court. The appellant was jointly indicted with two other men on the following counts:

Crimes Act 1900;

Crimes Act

2 The co-accused Michael Pritchard was indicted on the same three counts. The co-accused Ropati Ailua was indicted on counts 1 and 2 only. All 3 men pleaded not guilty to all counts. Following a trial the jury returned the following verdicts:

3 The appellant was sentenced to an aggregate non-parole period of 3 years and a balance of term of 1½ years. The appellant appeals against his conviction. There is no application for leave to appeal against the sentence.

The facts

4 The Crown case…

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 Mohamed v R

Details

AGLC: Mohamed v R [2008] NSWCCA 45
Case: [2008] NSWCCA 45
Decision Date: 5 March 2008

CaseChat Overview and Summary

In this matter, Mohamed appealed against his conviction for aggravated kidnapping and robbery in company. The case was heard in the High Court of Australia. Mohamed was jointly indicted with two other co-accused. Both co-accused were acquitted of the aggravated charges, but Mohamed was found guilty by a jury. The jury found that Mohamed played a significantly different role to his co-accused, and thus the verdicts were not inconsistent. Mohamed argued that his conviction for robbery in company was unreasonable, and that the trial judge should have directed the jury on an alternative non-aggravated count. Mohamed also argued that the trial judge was required to summarise all evidence for the jury in his summing-up.
The court held that the jury was entitled to find that Mohamed played a significantly different role to his co-accused, and thus the verdicts were not inconsistent. The court found that Mohamed's conviction for robbery in company was open to the jury, and that there was no error in the trial judge's direction to the jury. The court also held that there was no requirement for the trial judge to summarise all evidence for the jury in his summing-up.

The appeal was dismissed.

Orders