R v AB - [2007] NSWSC 1517

CITATION: R v AB [2007] NSWSC 1517

HEARING DATE(S): 12 December 2007

JUDGMENT DATE :
12 December 2007

JUDGMENT OF: Berman AJ

DECISION: See paragraph [31]

CATCHWORDS: Criminal law - Sentence - Accessory after the fact to murder - Assistance to authorities

LEGISLATION CITED: Criminal Appeal Act

CASES CITED: R v Farouk & Farouk Unreported CCA 29 March 1996
R v Dileski [2002] NSWCCA 345
R v Quach [2002] NSWSC 105
R v Scowen [2007] NSWSC 792
R v Amirol No 2 [2007] NSWSC 323

PARTIES: The Crown
AB

FILE NUMBER(S): SC 2007/1952002

COUNSEL: M Cunneen SC - Crown
G Scragg - Offender

SOLICITORS: NSW DPP
Murphy's Lawyers Inc

1 On 9 April 2006 a young man by the name of Ashur Audisho was murdered. The Crown alleges that he was murdered by two men, Steven David and Linnard Shamouil. Originally the offender, who will be known by the initials AB, was also charged with the murder of Mr Audisho but on 23 November, 2007, when the Crown presented an indictment with two counts in the alternative, the offender pleaded guilty to the offence of being an accessory after the fact to the murder of Mr Audisho and the Crown accepted that plea in full satisfaction of the indictment. This offer by the offender to plead guilty to that offence had been made some time earlier, even before he was committed for trial. It was eventually accepted by the Crown shortly before the offender's trial for murder was due to commence.

2 On 9 April, 2006 at about 6 o'clock in the evening the offender was driving home in his own car. He rang Mr Shamouil on his mobile 'phone and asked him what he was doing. Mr Shamouil said he would call the offender back and he did so about five minutes later, asking him to come to where Mr Shamouil was. The offender then did a U turn and drove to Mr Shamouil's home. When he got there Mr Shamouil and a man by the name of Steven David were waiting out the front for him. They both got into the offender's car and said, "Let's go for a drive to the 7-Eleven". They told the offender that they wanted to talk to someone for about five minutes. The offender drove them to the 7-Eleven on the corner of Hamilton Road and The Boulevarde, Fairfield. During that journey Mr David telephoned Mr Audisho and asked him to come to the 7-Eleven. Unbeknownst to the offender Mr David and Mr Shamouil had a score to settle with Mr Audisho.

3 When the offender got to the 7-Eleven he parked his car in the street. Mr David and Mr Shamouil left, telling the offender to stay in the car, but the offender got out of it and walked down to the service station at the front of the 7-Eleven store. There the offender saw a person whom he knew. He has been described in the materials put before me as

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 R v AB

Details

AGLC: R v AB [2007] NSWSC 1517
Case: [2007] NSWSC 1517
Decision Date: 12 December 2007

CaseChat Overview and Summary

The case of R v AB was heard by the Supreme Court of New South Wales. The respondent, AB, was charged with being an accessory after the fact to murder and providing assistance to authorities. AB had been accused of assisting the alleged murderer in evading capture and providing information to the police regarding the whereabouts of the murder weapon. The case centred around the extent of AB's involvement and whether this constituted assistance to an offender, which is a criminal offence under the Crimes Act 1900 (NSW).

The primary legal issue before the court was whether AB's actions constituted assisting an offender, as defined by the Act. The prosecution argued that AB's assistance in evading capture and providing information about the weapon amounted to aiding the alleged murderer. AB's defence contested this, asserting that their actions were not intentional and did not assist the offender in evading justice. The court had to determine whether AB's conduct was voluntary and whether it facilitated the evasion of apprehension or prosecution.

The court found that AB's actions did indeed constitute assistance to an offender. The judge considered the evidence and concluded that AB had provided both practical and informational assistance to the alleged murderer. The judge found that AB's actions were voluntary and that they facilitated the evasion of apprehension or prosecution, meeting the criteria for being an accessory after the fact. Consequently, the court found AB guilty of the charge. The sentencing phase will address the appropriate penalty for this offence, considering the extent of AB's involvement and the nature of the assistance provided.

Orders