R v Ahmed - [2001] NSWCCA 450

CITATION: Regina v Emad AHMED [2001] NSWCCA 450

FILE NUMBER(S): CCA 60422/01

HEARING DATE(S): 7/11/01

JUDGMENT DATE:
21 November 2001

PARTIES :

Emad AHMED (Appellant)
Regina (Respondent)

JUDGMENT OF: Heydon JA at 1; Dowd J at 2; Bell J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/3120

LOWER COURT JUDICIAL
OFFICER : Freeman DCJ

COUNSEL : J C Papayanni (Appellant)
W G Dawe QC (Crown)

SOLICITORS: Jeffreys & Associates (Appellant)
S E O'Connor (Crown)

LEGISLATION CITED: Criminal Appeal Rules 1952
Crimes Act 1900 (NSW)
Crimes Act 1958 (Vic)
Crimes (Criminal Destruction and Damage) Amendment Act 1987
Evidence Act 1995

CASES CITED:
Director of Public Prosecutions' Reference No 1 of 1988 (1989) 40 A Crim R 461
Peters v the Queen (1998) 192 CLR 493
Regina v Tripodina (1988) 35 A Crim R 183
Wilde v the Queen (1988) 164 CLR 365

DECISION: Dismiss the appeal against conviction; Leave to appeal against the severity of sentence granted; Dismiss the appeal against sentence

- 4 -IN THE SUPREME COURT

60422/01

HEYDON JA
DOWD J
BELL J

21 November 2001

REGINA v Emad AHMED

Judgment

1 HEYDON JA: I agree with Bell J.

2 DOWD J: I agree with Bell J.

: The appellant was arraigned before Freeman DCJ and a jury at the District Court at Penrith on 27 February 2001. It is appropriate to set out the terms of the indictment which contained two counts framed in the alternative:

“(1) That whereas Warwick Marshall on or about 28 March 1999 at Ingleburn, in the State of New South Wales, dishonestly and with a view for making a gain for himself, by means of fire, did damage property, namely a building located at the corner of Oxford Road and Macquarie Road, the property of Percival Management Pty Limited and for that he is charged that before the said offence was committed in the manner aforesaid, between 20 March 1999 and 28 March 1999 at Ingleburn in the State of New South Wales, he did incite, move, procure, aid, counsel, hire and command Warwick Marshall to commit the said offence in the manner aforesaid.

(2) For that he is further charged in the alternative that whereas Warwick Marshall on or about 28 March 1999 at Ingleburn, in the State of New South Wales, did maliciously damage by means of fire property, namely a building located at the corner of Oxford Road and Macquarie Road, the property of Percival Management Pty Limited and for that he is charged that before the said offence was committed in the manner aforesaid between 20 March 1999 and 18 March 1999 at Ingleburn, in the State of New South Wales, in did incite, move, procure, aid, counsel, hire and command Warwick Marshall to commit the said offence in the manner aforesaid.”

4 The offence charged in count one is provided by s 197(b) of the Crimes Act 1900 (NSW) (“the Act”). The count charges the appellant as an accessory before…

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 Ahmed

Details

AGLC: Regina v Emad Ahmed [2001] NSWCCA 450
Case: [2001] NSWCCA 450
Decision Date: 21 November 2001

CaseChat Overview and Summary

In the case of Regina v Emad Ahmed, the appellant, Emad Ahmed, was convicted of being an accessory before the fact to the arson of a fruit shop, a crime committed by Warwick Marshall. The Court of Criminal Appeal in New South Wales dismissed Ahmed's appeal against his conviction but granted leave to appeal against the severity of the sentence imposed upon him. The appeal against the severity of the sentence was ultimately dismissed.

Ahmed was charged with inciting, aiding, and counselling Warwick Marshall to commit the arson in order to fraudulently claim insurance money. The court examined several grounds of appeal, including whether the trial judge's directions to the jury were legally correct, whether the evidence of certain witnesses was properly admitted, and whether the sentence was excessive. The court found that the trial judge's directions were adequate, and that the evidence of the witnesses was properly admitted and relevant to the case. Lastly, the court held that the sentence was not excessive, taking into account the seriousness of the offence and the need for general deterrence.

In conclusion, the Court of Criminal Appeal dismissed the appeal against the conviction and the appeal against the severity of the sentence, while granting leave to appeal against the severity of the sentence. The appellant's conviction and sentence were ultimately upheld.

Orders