R v Abu-Mahmoud - [2024] NSWCCA 21

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Abu-Mahmoud [2024] NSWCCA 21
Hearing dates: 19 February 2024
Date of orders: 28 February 2024
Decision date: 28 February 2024
Before: Harrison CJ at CL at [1];
Dhanji J at [56];
Huggett J at [60]
Decision:
The appeal is dismissed.

Catchwords:
APPEALS – criminal procedure – temporary stay of proceedings – where the Crown sought to rely on putatively privileged communications by a third party – where delay occurred because the question of whether privilege had been waived was not resolved when the third party was to give evidence – temporary stay of proceedings granted pending the Crown’s payment of costs thrown away – whether decision of the Director of Public Prosecutions not to fund legal representation for the third party to resolve the privilege issue was an irrelevant consideration in granting the temporary stay – whether the Crown was at fault for the delay such that the principles of R v Mosely (1992) 28 NSWLR 735 applied – whether the accused suffered unfairness because of delays in resolving the privilege issue

Legislation Cited:
Crimes Act 1900 (NSW), s 319
Criminal Appeal Act 1912 (NSW), s 5F(2)
Evidence Act 1995 (NSW), s 133

Cases Cited:
House v The King [1936] HCA 40; (1936) 55 CLR 499
Petroulias v R [2007] NSWCCA 154
R v Abbas; R v Abu-Mahmoud (District Court (NSW) 22 November 2023, unrep)
R v Abu-Mahmoud (District Court (NSW), 28 November 2023, unrep)
R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41
R v Issakidis [2015] NSWSC 834
R v Mosely (1992) 28 NSWLR 735

Category: Principal judgment
Parties: Rex (Appellant)
Mohamed Abu-Mahmoud (Respondent)
Representation:
Counsel:
M England (Appellant)
M Kalyk (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Appellant)
Bannisters Lawyers (Respondent)

File Number(s): 2018/324227
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 November 2023

Before:

Noman SC DCJ

File Number(s):

2018/333608
2018/324227

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 28 November 2023, Noman SC DCJ granted a temporary stay of the trial of Mohamed Abu-Mahmoud pending the Crown’s payment of costs incurred by him because of delay they caused by calling a third-party witness to determine the status of a privilege claim. Mr Abu-Mahmoud and his co-accused, Ali Abbas, are jointly charged with doing an act intending to pervert the course of justice, contrary to s 319 Crimes Act 1900 (NSW).
That alleged offending arose from circumstances in which Mr Abu-Mahmoud’s teenage son, Adam Abu-Mahmoud, was fatally stabbed by Joshua Dillon in July 2016. In April 2017, Joshua Dillon’s 15-year-old brother, Brayden Dillon, was shot and killed by [CC]. The Crown alleges that Mr Abu-Mahmoud, Ali Abbas and others, in a joint criminal enterprise, paid [CC], before he was arrested for the murder of Brayden Dillon, to provide an affidavit that purported to exonerate any member of Mr Abu-Mahmoud’s family for the murder of Brayden…

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 Abu-Mahmoud

Details

AGLC: R v Abu-Mahmoud [2024] NSWCCA 21
Case: [2024] NSWCCA 21
Decision Date: 28 February 2024

CaseChat Overview and Summary

In the case of R v Abu-Mahmoud, the defendant was facing criminal charges, and the Crown sought to introduce evidence of privileged communications made by a third party. The dispute centred on whether the privilege had been waived and whether the delay caused by this uncertainty warranted a temporary stay of proceedings. The matter was before the Supreme Court of New South Wales. The legal issues the court had to address were whether the decision of the Director of Public Prosecutions not to fund legal representation for the third party was a relevant consideration in granting the stay, whether the Crown's delay was sufficient to trigger the principles outlined in R v Mosely, and if the accused had suffered unfairness due to the unresolved privilege issue.

The court reasoned that the Crown's decision to not fund legal representation for the third party was not an irrelevant consideration. The court held that the Crown was at fault for the delay, which triggered the principles from R v Mosely. The court determined that the delay caused by the unresolved privilege issue had indeed led to unfairness for the accused, warranting a temporary stay of proceedings. The court also concluded that the Crown's payment of costs thrown away was a necessary condition for granting the stay. Therefore, the stay was granted pending the Crown's compliance with this condition.

The court ordered that the Crown pay the costs incurred by the defence due to the delay. Additionally, the proceedings were temporarily stayed until the Crown complied with this order. The court emphasised the importance of resolving privilege issues promptly to avoid unnecessary delays and the potential unfairness to the accused. The decision underscored the need for the Crown to act diligently in such matters to prevent unjust prejudice to the defendant.

Orders