R v Ali - [2001] NSWCCA 218

Reported Decision:
122 A Crim R 498

New South Wales

Court of Criminal Appeal

CITATION: Regina v Ali [2001] NSWCCA 218

FILE NUMBER(S): CCA 60401/00

HEARING DATE(S): 15th May 2001

JUDGMENT DATE:
15 May 2001

PARTIES :

Regina v Abbas Mohammed Ali

JUDGMENT OF: Giles JA at 1; Greg James J at 2; Badgery-Parker AJ at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/66; 99/11/055

LOWER COURT JUDICIAL
OFFICER : Woods J

COUNSEL : C Maxwell QC- Crown
S Odgers SC - Appellant

SOLICITORS:

CATCHWORDS: Criminal Law - fresh evidence - grounds to set aside convictions - identification evidence - risk of miscarriage of justice - new trial.

LEGISLATION CITED: Evidence Act 1995

CASES CITED:
Mickelberg v Queen (1988-89) 167 CLR 259
R v Stackelroth (CCA unreported, 3 April 1996)

DECISION: Convictions quashed and new trial ordered.

IN HE COURT OF
CRIMINAL APPEAL

60401/00
GILES JA
GREG JAMES J
BADGERY-PARKER AJ Tuesday 15 May 2001
REGINA -V- ABBAS MOHAMED ALI

JUDGMENT

1 GILES JA: We are of the opinion, without going further, there must be a new trial. We note what Mr Odgers said about ground three. However, we do not wish to express a concluded view on that matter or to ask for further submissions from the parties.

I would ask Badgery-Parker AJ to give the first reasons.

2 BADGERY-PARKER AJ: The appellant, Abbas Mohamed Ali, and a co-accused, Koder Jamaa, stood trial in the District Court in Sydney in March 2000 upon the charge of armed robbery. The appellant was also charged with discharging a firearm in a dangerous manner. On 23 March 2000 the appellant was found guilty of both charges, while Mr Jamaa was found not guilty.

3 The critical issue at the trial was the identification of the perpetrators of the armed robbery, about the circumstances of which there was no dispute. The crimes took place in a shopping complex adjacent to the Novotel Hotel at Brighton-le-Sands. The two perpetrators waited in the shopping arcade until two employees of the hotel, Mr Paul Rayner and Mr Peter Donovan, walked from the hotel into the arcade. One of them was carrying a black bag. They were going to the bank to collect money. The perpetrators evidently believed they were carrying money to the bank and they confronted the two men in the arcade near the bank entrance. One of them produced a firearm and said, "This is a stick up, drop the bag." Mr Rayner complied. The man who was not armed punched Mr Rayner to the right-hand side of the face, knocking him to the ground. The armed offender pointed the gun in the direction of Mr Donovan, who was still standing, and discharged it. It missed Mr Donovan and fortunately did not cause injury to any of the other people in the vicinity. The two robbers fled with the bag into Bay Street.

4 Briefly, the identification evidence was as follows. Mr Rayner was shown a set of photographs and…

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 Ali

Details

AGLC: R v Ali [2001] NSWCCA 218
Case: [2001] NSWCCA 218
Decision Date: 15 May 2001

CaseChat Overview and Summary

The respondents, Ali and another, were convicted by a jury of armed robbery. Ali was sentenced to 16 years in prison, while his co-accused received 12 years. Ali now seeks to set aside his conviction, claiming that there is fresh evidence that may indicate his innocence and that the risk of a miscarriage of justice is real. The trial judge had earlier dismissed a similar application. Ali argues that the trial judge misdirected herself in assessing the fresh evidence and that the trial judge’s error was so significant that it led to a miscarriage of justice.

The court had to determine whether the fresh evidence provided by Ali was sufficient to warrant a new trial. This involved assessing the credibility and weight of the new evidence, determining whether the trial judge had erred in her assessment of the fresh evidence, and considering whether a miscarriage of justice was a real possibility. The court also had to decide whether the trial judge’s error in assessing the fresh evidence was significant enough to warrant a new trial.

The court found that the trial judge had erred in her assessment of the fresh evidence. The court held that the fresh evidence was sufficient to warrant a new trial and that there was a real possibility of a miscarriage of justice. The court found that the trial judge’s error in assessing the fresh evidence was significant enough to warrant a new trial. The court also found that the identification evidence was unreliable and that there was a real risk that Ali was wrongly convicted. The court held that the risk of a miscarriage of justice was real and that a new trial was warranted.

The court set aside Ali’s conviction and ordered a new trial. The court held that the fresh evidence was sufficient to warrant a new trial and that there was a real possibility of a miscarriage of justice. The court found that the trial judge’s error in assessing the fresh evidence was significant enough to warrant a new trial. The court also found that the identification evidence was unreliable and that there was a real risk that Ali was wrongly convicted. The court held that the risk of a miscarriage of justice was real and that a new trial was warranted.

Orders