R v Asaad

Case [2017] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION:

R v Asaad [2017] QCA 108

PARTIES:

R
v
ASAAD, Michael Boghdadi
(appellant/applicant)

FILE NO/S:

CA No 39 of 2016
CA No 141 of 2016
DC No 768 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 5 February 2016; Date of Sentence: 12 May 2016

DELIVERED ON:

30 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2016

JUDGES:

Fraser and Philippides JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction is dismissed.

2.   Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – WARNING ADVISABLE OR REQUIRED – where the appellant was convicted of dishonestly obtaining a financial advantage from a Commonwealth entity – where the appellant obtained a late registration birth certificate in the name of Michael Boghdadi Asaad – where the appellant used that notice of birth as an identity document in his successful application for an Australian passport in the same name – where the appellant applied for Centrelink benefits under that name using his Australian passport – where the appellant received Commonwealth benefits in the total sum of $89,161.44 – where the prosecutor invited the jury to compare the photographs on two different passports and to conclude that the photographs were of one and the same person – where the trial judge gave conventional directions about circumstantial evidence – where the appellant argued that the trial judge should have given directions or warnings about the issues involved in the comparison of the passport photographs – whether the trial judge erred in not giving the jury a strict warning about the dangers of identification evidence in all of the circumstances

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – where the appellant has applied for leave to appeal against sentence – where the appellant had a significant and serious criminal history – where the appellant had health conditions and a disabled son – where the appellant argued the custody would cause his family hardship – where it was more than a completely speculative possibility that the appellant would be deported as a result of the conviction – where the appellant argued that the sentence should have been ameliorated by application of the principle of totality – whether the aggregate sentence is just and appropriate – whether the sentence was manifestly excessive – whether the sentencing judge failed to reflect the appellant’s age, health conditions, the health conditions of his disabled son and other relevant factors in the sentence

Crimes Act 1914 (Cth), s 19AB(1)(d)
Criminal Code (Qld), s 668B(1)
Criminal Code 1995 (Cth), s 134.2(1)
Evidence Act 1995 (Cth), s 156, s 157
Migration Act 1958 (Cth), s 501(6)(a)

Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17, considered
Alford v Magee (1952) 85 CLR 437; [1952] HCA…

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R v Asaad [2017] QCA 108
Case
[2017] QCA 108
Decision Date

CaseChat Overview and Summary

The appellant was convicted of obtaining a financial advantage by deception from a Commonwealth entity. He did this by obtaining a late registration birth certificate in the name of Michael Boghdadi Asaad and using it to obtain an Australian passport. He subsequently applied for and received Centrelink benefits in that name, totalling $89,161.44. The prosecution relied on identification evidence, comparing the photographs on the two passports to establish the appellant's identity. The appellant argued that the trial judge should have warned the jury about the dangers of identification evidence. The appellant also appealed against his sentence, arguing it was excessive and did not sufficiently reflect his health conditions, age, and the health conditions of his disabled son.

The court considered whether the trial judge erred in not giving a specific warning about the dangers of identification evidence. The court noted that while a warning may have been advisable, the judge's conventional directions about circumstantial evidence were sufficient. The court held that the trial judge's approach was adequate and that the appellant's conviction was properly based on the evidence presented. Regarding the sentence, the court examined whether it was just and appropriate, taking into account the appellant's criminal history, health conditions, and family situation. The court concluded that the sentence was not manifestly excessive and that the sentencing judge had appropriately considered the relevant factors.

The appeal against conviction was dismissed, as the court found no error in the trial judge's handling of identification evidence. The application for leave to appeal against sentence was also refused, as the court determined the sentence was just and appropriate in light of the appellant's circumstances.

The final orders were that the appeal against conviction was dismissed and the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. Appeal against conviction is dismissed.

2. Application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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