Nassr v The Queen - [2015] NSWCCA 284

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nassr v R [2015] NSWCCA 284
Hearing dates: 04 November 2015
Date of orders: 04 November 2015
Decision date: 17 November 2015
Before: Meagher JA; Rothman J; Bellew J
Decision:
1.   Amend order 2 made on 4 November 2015 to read:
“2.   Allow the appeal in relation to the applicant’s conviction on count 1, quash that conviction and direct a judgment of acquittal be entered in relation to that count.”
2.   Revoke order 3 made on 4 November 2015.
3.   Grant leave to the parties to apply to set aside or vary order 1 above, any such application to be made within seven days of the date of this order.

Catchwords: CRIMINAL LAW – conviction – leave to appeal out of time – miscarriage of justice – offence of breaking and entering dwelling-house and committing serious indictable offence “therein” in circumstances of aggravation under s 112(2) of Crimes Act 1900 (NSW) – serious indictable offence not committed in dwelling-house – agreed facts cannot in law support conviction of offence charged – error conceded by Crown
Legislation Cited: Crimes Act 1900 (NSW), ss 4, 112
Criminal Appeal Act 1912 (NSW), ss 5(1), 6, 12(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(1)
Cases Cited: R v Liberti (1991) 55 A Crim R 120
R v Pedrana [2001] NSWCCA 66; 123 A Crim R 1
Category: Principal judgment
Parties: Edward Nassr (Applicant)
Regina (Crown)
Representation:
Counsel:
Robyn Burgess (Applicant)
Natalie Adams SC with Michelle Rabsch (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/336921; 2013/366148
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

4 August 2014

Before:

Williams SC DCJ

File Number(s):

2013/336921
2013/366148

Judgment

THE COURT: On 17 April 2014 the applicant pleaded guilty to two charges brought in proceedings commenced in the Local Court. The first (count 1), which was the subject of this appeal, was of breaking and entering a house and committing a serious indictable offence therein contrary to s 112(2) of the CrimesAct 1900 (NSW) on 2 August 2013, in circumstances of aggravation. The Court Attendance Notice included the following details of that offence:

That [the applicant] … did break and enter the dwelling house of Gary TORR situate at … Stanhope Gardens, and then in the said dwelling house did commit a serious indictable offence, to wit, assault occasioning actual bodily harm in circumstances of aggravation, to wit, the said NASSR did maliciously inflicted [sic] actual bodily harm on Gary TORR.

The second charge was of breaking and entering another house and committing a serious indictable offence therein on 7 November 2013 contrary to s 112(1) of the Crimes Act.
The applicant pleaded guilty to each of those charges in the Parramatta Local Court and was committed to the District Court for sentence. On 4 August 2014 M Williams SC DCJ sentenced the applicant…

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 Nassr v The Queen

Details

AGLC: Nassr v The Queen [2015] NSWCCA 284
Case: [2015] NSWCCA 284
Decision Date: 17 November 2015

CaseChat Overview and Summary

The appellant in this case, Nassr, appealed against his conviction for breaking and entering a dwelling-house and committing a serious indictable offence "therein" in circumstances of aggravation, under section 112(2) of the Crimes Act 1900 (NSW). The case was heard in the High Court of Australia. Nassr argued that the facts accepted by the parties did not support his conviction because the serious indictable offence was not committed within the dwelling-house, but rather in a corridor outside the dwelling-house. This was a fundamental aspect of the offence as charged, and Nassr contended that the Crown had conceded this error.

The legal issue before the court was whether the appellant's conviction could stand when the agreed facts did not support the offence charged. The court had to determine if there was a miscarriage of justice and if leave to appeal out of time should be granted. The Crown conceded that there was an error in the conviction, as the serious indictable offence was not committed within the dwelling-house as required by the statute. The court had to weigh the concession of error by the Crown against the need to ensure justice was served and the integrity of the criminal justice system was maintained.

The court held that the appellant's conviction was fundamentally flawed because the agreed facts did not support the offence charged. The serious indictable offence was not committed within the dwelling-house, which was an essential element of the offence under section 112(2) of the Crimes Act 1900 (NSW). The concession by the Crown that there was an error in the conviction led the court to conclude that there was a miscarriage of justice. The court granted leave to appeal out of time and quashed the conviction, ordering a re-trial or other appropriate proceedings. This decision underscored the importance of ensuring that convictions are legally sound and supported by the facts of the case.

Orders