Nisan v The Queen - [2017] NSWCCA 265

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nisan v R [2017] NSWCCA 265
Hearing dates: 3 November 2017
Date of orders: 16 November 2017
Decision date: 16 November 2017
Before: Hoeben CJ at CL at [1]
Schmidt J at [2]
Campbell J at [133]
Decision:
(1)   Leave to appeal be granted;
(2)   The conviction appeal be upheld;
(3)   The convictions be quashed; and
(4)   The appellant should be released forthwith

Catchwords: CRIMINAL LAW – appeal against conviction and sentence – truck collision at intersection – whether collision the result of dangerous driving – brake failure – whether sentence was manifestly excessive – whether appellant was wrongly convicted – admission of expert evidence based on assumptions – whether reasons given were inadequate – unsafe, unsatisfactory or unreasonable verdict – leave to appeal granted – conviction appeal upheld – convictions quashed – appellant released forthwith
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Road Rules 2008 (NSW)
Cases Cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
House v The King (1936) 55 CLR 499; [1936] HCA 40
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
R v Banhelyi [2012] QCA 357
R v Nisan (District Court (NSW), Payne DCJ, 27 April 2017, unrep)
R v Nisan (District Court (NSW), Payne DCJ, 16 October 2017, unrep)
R v Nisan (District Court (NSW), Payne DCJ, 21 November 2016, unrep)
Category: Principal judgment
Parties: Sarmad Shamon Nisan (Appellant)
Regina (Crown)
Representation:
Counsel:
Mr J Glissan QC with Mr A Moutasallem (Appellant)
Ms M Cinque SC (Crown)
Solicitors:
Hajjar Legal (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/00348973
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

---

Date of Decision:

21 November 2016

Before:

Payne DCJ

File Number(s):

2014/00348973

Judgment

HOEBEN CJ at CL: I agree with Schmidt J and the orders which she proposes.
SCHMIDT J: In October 2014 Mr Nisan was driving a truck which was involved in a collision at the intersection of Warringah and Pittwater Roads, Dee Why. A number of people were seriously injured, including Mr Nisan. In November 2016, after a judge alone trial, Mr Nisan was convicted of two charges of dangerous driving occasioning grievous bodily harm and acquitted of four counts of wilful neglect occasioning bodily harm: R v Nisan (District Court (NSW), Payne DCJ, 21 November 2016, unrep).
Mr Nisan was later sentenced to terms of imprisonment respectively of 3 years, with a non-parole period of 2 years dating from 4 April 2018 and 2 years with a non-parole period of 1 year and 9 months, dating from 4 April 2017: R v Nisan (District Court (NSW), Payne DCJ, 27 April 2017, unrep).
Mr Nisan has appealed both his conviction and sentence.
Mr Nisan’s…

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 Nisan v The Queen

Details

AGLC: Nisan v The Queen [2017] NSWCCA 265
Case: [2017] NSWCCA 265
Decision Date: 16 November 2017

CaseChat Overview and Summary

In the High Court of Australia, the case of Nisan v The Queen saw the appellant, Nisan, appealing against his conviction and sentence for causing a truck collision at an intersection. The collision resulted in the death of the victim, and Nisan was convicted of dangerous driving causing death. The appellant argued that the collision was due to brake failure, and thus not a result of dangerous driving. Additionally, Nisan contested the severity of his sentence, claiming it was manifestly excessive. The court was required to determine whether the appellant's convictions were based on legally sufficient evidence, whether the reasons provided for the admission of expert evidence were adequate, and if the verdict was unsafe, unsatisfactory, or unreasonable.

The court's reasoning focused on the adequacy of the reasons given for admitting expert evidence and the reliability of such evidence. It was found that the expert evidence was based on assumptions that were not adequately supported, leading to an unsafe and unsatisfactory verdict. Furthermore, the court considered the severity of the sentence and concluded it was manifestly excessive. The appeal against conviction was upheld, and the convictions were quashed. The court granted Nisan leave to appeal, and he was released forthwith.

The final orders of the court were that the appeal against conviction was allowed, the convictions were quashed, and Nisan was to be released immediately. The court's decision highlighted the importance of ensuring that expert evidence is based on sound assumptions and that sentences are proportionate to the offence committed. This case underscores the need for thorough examination of evidence and sentencing in criminal proceedings to ensure justice is served.

Orders