R v Abdollahi (No 12) - [2013] NSWSC 485

Supreme Court

New South Wales

Medium Neutral Citation: R v Abdollahi (No 12) [2013] NSWSC 485
Hearing dates: 8 April 2013
Decision date: 11 April 2013
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Application for order that Crown make election so as to avoid duplicity refused

Catchwords: CRIMINAL LAW - procedure - duplicity in indictment - whether legislation prohibiting riot and affray creates more than one offence for each - no duplicity
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Amendment Act 1988 (NSW)
Public Order Act 1986 (UK)
Cases Cited: Colosimo and Ors v Director of Public Prosecutions (NSW) [2005] NSWSC 854; (2005) 64 NSWLR 645
I v Director of Public Prosecutions [2001] UKHL 10; [2002] 1 AC 285
R v Jefferson [1994] 1 All ER 270
R v Hawi (No 18) [2011] NSWSC 1664
R v Smith [1997] 1 Cr App R 14
R v Tyler (1993) 96 Cr App R 332
S v The Queen [1989] HCA 66; (1989) 168 CLR 266
Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77
Texts Cited: Archbold, Pleading, Evidence and Practice in Criminal Cases
Blackstone's Criminal Practice
Law Commission, Offences Relating to Public Order (Law Com No 123)
Category: Procedural and other rulings
Parties: Regina
Ali Abdollahi
Haider Hussein Ali
Mohammed Naim Amiri
Amir Manafi Bejoushin
Taleb Feili
Ali Haidari
Majid Parhizkar
Kamelledin Shahsawari
Medhi Viasi
Representation: Counsel:
Mr G Farmer SC with Ms J Single (Crown)
Mr C Smith (Abdollahi)
Mr M Paish (Ali)
Mr J O'Sullivan (Amiri)
Mr R Jankowski (Bejoushin)
Mr W Flynn (Feili)
Mr R Pontello (Haidari)
Mr D Marr (Parhizkar)
Mr P Little (Shahsawari)
Mr A Webb (Viasi)
Solicitors:
Commonwealth Director of Public Prosecutions
Watsons Solicitors & Barristers
Archbold Legal
CBD Criminal Defence Lawyers
Blair Criminal Lawyers
L David Lock

File Number(s): 2011/219556

Judgment

HIS HONOUR: Mr Little, counsel for the accused Shahsawari, has made a submission that the counts in the indictment of riot and affray are bad for duplicity. An order is sought requiring the Crown to elect as to which of two elements it is relying upon in respect of each charge.

The late raising of the issue

Mr Shahsawari was arraigned and pleaded not guilty to those counts on 17 August 2012. Pre-trial hearings of various evidentiary issues commenced on 29 January 2013. Mr Shahsawari was re-arraigned in the presence of a jury panel on 11 February 2013 and again pleaded not guilty. The trial proceeded to a point midway through the second-last of ten closing addresses by counsel when Mr Little raised this issue last Friday, 5 April 2013.

A written outline of submissions was provided. I expressed concern about the lack of authority cited and, in the event there was nothing directly on point, the lack of any reference to relevant general principles. Further written submissions were provided over the weekend. The Crown provided written submissions in response. Mr Little made brief oral submissions in response to the Crown.

None of…

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 Abdollahi (No 12)

Details

AGLC: R v Abdollahi (No 12) [2013] NSWSC 485
Case: [2013] NSWSC 485
Decision Date: 11 April 2013

CaseChat Overview and Summary

The case of R v Abdollahi (No 12) involved a defendant, Abdollahi, who was charged with offences related to participating in a riot and affray. The dispute was centred on the validity of the charges against Abdollahi, specifically whether the charges were properly framed under the relevant legislation. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the legislation that criminalised riot and affray created more than one offence for each offence charged. The court needed to determine if there was duplicity in the indictment, which occurs when a single charge encompasses multiple distinct offences. If found guilty, Abdollahi faced significant legal consequences, including imprisonment.

The court examined the relevant sections of the legislation and concluded that each offence charged constituted a separate and distinct offence. The court found that the charges were not duplicitous as each offence required proof of different elements and thus did not merge into a single offence. Consequently, the court dismissed the contention that the indictment was flawed due to duplicity. The court ruled that the charges were properly framed and that the trial could proceed on the merits of the case.

As a result of this ruling, the case proceeded to trial on the merits of the charges against Abdollahi. The court's decision clarified the proper interpretation of the legislation and ensured that the charges were valid and could be effectively prosecuted.

Orders