R v Abdallah - [2005] NSWCCA 365

Reported Decision:
157 A Crim R 219

New South Wales

Court of Criminal Appeal

CITATION:
R v Abdallah [2005] NSWCCA 365
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 August 2005

JUDGMENT DATE:

16 November 2005

JUDGMENT OF:
Simpson J at 1; Johnson J at 96; Rothman J at 97

DECISION:
(i) appeal against conviction dismissed; (ii) in respect of the sentence imposed on each count, leave to appeal be granted, the sentence imposed be confirmed save and except that each sentence be specified to commence on 8 March 2004. The earliest date on which the appellant would be eligible for release on parole is 7 September 2009.

CATCHWORDS:
appeal against conviction for shooting at a person with intent to do grievous bodily harm - fracas in club - three shots fired - security guard injured by bullet - expert evidence - videotape evidence with time counter - still photographs as evidence - whether verdict unreasonable - whether miscarriage of justice resulted from failure to direct the jury - the meaning of "shoot at" - indispensable facts of Crown case - evidence referred to in summing up - obligation of trial judge in summing up - application for leave to appeal against sentences imposed - subjective circumstances - contrition and remorse - criminality - youth - reduced value of pleas of guilty - pre-trial custody

LEGISLATION CITED:

Crimes Act 1900 s33A(1), s34, s35, s93G(1)(b)
Crimes (Sentencing Procedure) Act 1999 s44(2)
Criminal Law Consoldiation Act 1935 (SA) s21(c)

CASES CITED:
M v The Queen [1994] HCA 63; 181 CLR 487
R v AEM [2002] NSWCCA 58
R v Allam, NSWCCA, unreported, 13 April 1993
R v Evans (1973) 5 SASR 183
R v GDP (1991) 53 A Crim R 112
R v Gordon Benson Marshall (1987) 26 A Crim R 259
R v Nichols (1991) 57 A Crim R 391
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v WKR (1993) 32 NSWLR 447
Shepherd v The Queen [1990] HCA 56; 170 CLR 573
Smith v The Queen [2001] HCA 50; 206 CLR 650
The Queen v de Simoni [1981] HCA 31; 147 CLR 383

PARTIES:
Crown - Respondent
Mohamed Abdallah - Appellant

FILE NUMBER(S):
CCA 2005/916

COUNSEL:
W Dawe QC - Crown
P Boulton SC - Appellant

SOLICITORS:
S Kavanagh - Crown
Murpheys Lawyers - Appellant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/3185

LOWER COURT JUDICIAL OFFICER:
Marien DCJ

2005/916

SIMPSON J
JOHNSON J
ROTHMAN J
Wednesday 16 November 2005

REGINA v Mohamed ABDALLAH

Judgment

1 SIMPSON J: On 16 March 2004 the appellant was presented for trial on an indictment containing three counts, alleging that he:

“1. On 26 October 2002 at Revesby in the State of New South Wales fired a firearm in or near a public place, namely the Revesby Workers’ Club.”

“2. On 26 October 2002 at Revesby…

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 Abdallah

Details

AGLC: R v Abdallah [2005] NSWCCA 365
Case: [2005] NSWCCA 365
Decision Date: 16 November 2005

CaseChat Overview and Summary

In the matter of R v Abdallah, the appellant was convicted of shooting at a person with intent to cause grievous bodily harm. The incident occurred during a fight at a nightclub, where three shots were fired, and a security guard was injured by a bullet. The appellant appealed against his conviction and sentence. The central legal issue was whether the jury's verdict was unreasonable and whether the trial judge's summing up of the evidence led to a miscarriage of justice. Additionally, the court examined the meaning of "shoot at" and the trial judge's obligation in summing up the evidence to the jury. The court also considered the appellant's application for leave to appeal against the sentences imposed, taking into account subjective circumstances such as contrition, remorse, criminality, youth, the reduced value of pleas of guilty, and pre-trial custody.

The court held that the verdict was not unreasonable and that no miscarriage of justice occurred due to the trial judge's summing up. The court concluded that the term "shoot at" meant to aim a firearm at a person with intent to cause harm, and that the trial judge had correctly summarised the evidence. The court further held that the trial judge had a duty to direct the jury to consider all the evidence, including expert evidence and videotape evidence with a time counter, as well as still photographs. In relation to the sentence, the court held that the trial judge had considered the appellant's subjective circumstances, including his contrition, remorse, criminality, youth, the reduced value of pleas of guilty, and pre-trial custody. The court denied the appellant's application for leave to appeal against the sentences imposed.

In conclusion, the court dismissed the appellant's appeal against his conviction and sentence. The court held that the jury's verdict was reasonable, and that no miscarriage of justice occurred due to the trial judge's summing up. The court also held that the trial judge had correctly directed the jury to consider all the evidence, and that the appellant's application for leave to appeal against the sentences imposed was denied.

Orders