3 KIRBY J: On the late evening of 6 May 2001, Romeo Nasr (the deceased) was driving a motor vehicle in Frederick Street, Campsie. His uncle, Fadi Nasr, was seated beside him as a passenger. Suddenly a gunman rushed towards the vehicle. He began firing a handgun, discharging seven bullets. Several hit the vehicle. One struck Romeo Nasr in the back, entering his heart. He died soon thereafter.
4 On 10 May 2001 Mr Abou-Chabake (the appellant) was arrested. He was charged with the murder of Romeo Nasr and the attempted murder of Fadi Nasr. On 19 November 2002 Mr Abou-Chabake stood trial before Howie J and a jury. He pleaded not guilty to each charge. On 2 December 2002 the jury found him guilty of the murder of Romeo Nasr, and not guilty of the attempted murder of Fadi Nasr.
5 The Notice of Appeal raises three grounds:
Ground 1: The appellant seeks leave to rely upon what is said to be "fresh evidence". He asserts that, had this evidence been before the jury, there is a significant possibility that he would have been acquitted.
Ground 2: It is said that Manslaughter by an Unlawful and Dangerous Act was open, and should have been left to the jury as an alternative…
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.
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AGLC
R v Abou-Chabake [2004] NSWCCA 356
Case
[2004] NSWCCA 356
Decision Date
CaseChat Overview and Summary
In the case of R v Abou-Chabake, the defendant was convicted of murder by a jury in the Supreme Court of Victoria. The defendant appealed the decision, arguing that there was fresh evidence that was not available at the time of the trial. This evidence, if believed, would have led to a conviction for manslaughter rather than murder. The Court of Appeal was tasked with determining whether the fresh evidence was credible and whether it could have reasonably led to a different verdict.
The court considered whether the defendant had exercised due diligence in obtaining the fresh evidence and whether it was a tactical decision not to call it at the original trial. The court also examined whether the fresh evidence was credible and whether it could have reasonably led to a conviction for manslaughter. Additionally, the court assessed whether the fresh evidence supported a defence of excessive self-defence. The court had to weigh the principles of criminal practice and procedure in light of the fresh evidence and the defendant's arguments.
After careful consideration, the Court of Appeal found that the fresh evidence was not credible and did not reasonably support a conviction for manslaughter. The court held that the defendant had not exercised due diligence in obtaining the evidence and that it was not a tactical decision not to call it at the original trial. The court also found that the fresh evidence did not support a defence of excessive self-defence. Therefore, the appeal was dismissed, and the conviction for murder was upheld.
The Court of Appeal did not make any orders beyond dismissing the appeal and upholding the conviction for murder. The defendant's conviction remained unchanged, and no further action was taken regarding the fresh evidence. The court's decision was based on the principles of criminal practice and procedure and the assessment of the credibility and relevance of the fresh evidence.