R v El Masri (No 2) - [2010] NSWSC 1327

CITATION: R v El Masri (No 2) [2010] NSWSC 1327

HEARING DATE(S): 3/11/2010, 4/ll/2010, 5/11/2010, 8/11/2010, 9/11/2010, 10/11/2010, 11/11/2010, 12/11/2010, 15/11/2010, 16/11/2010

JUDGMENT DATE :
19 November 2010

JUDGMENT OF: Hoeben J

DECISION: Jury directed to enter verdicts of acquittal.

CATCHWORDS: CRIMINAL LAW - Application by accused for verdicts of acquittal by direction - charges of murder and wounding with intent to cause grievous bodily harm - significant gaps in Crown case - inferences upon which finding of guilt could be made not available to jury - a finding of guilt would involve speculation not inference - jury directed to enter verdicts of acquittal.

CATEGORY: Principal judgment

CASES CITED: Doney v The Queen (1990) 171 CLR 207
JMR (1981) 57 A Crim R 39
R v PL [2009] NSWCCA 256
R v R (1989) 18 NSWLR 74

PARTIES: Crown
Rami - El Masri - Accused

FILE NUMBER(S): SC 2009/00158044

COUNSEL: Mr TR Bailey - Crown
Mr T Hoyle SC - Accused

SOLICITORS: Director of Public Prosecutions - Crown
Aquila Lawyers - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday, 19 November 2010

2009/00158044 – R v Rami El MASRI (No 2)
JUDGMENT

1 HIS HONOUR:

Nature of Application

(1) On 14 December 2008 at Homebush in the State of New South Wales did murder Mohammed Omar.

(2) On 14 December 2008 at Homebush in the State of New South Wales did wound Mahmoud Omar with intent to cause him grievous bodily harm.

2 After some preliminary argument and rulings, the matter commenced before a jury of twelve and myself on Monday, 8 November 2010. The Crown closed its case on Tuesday, 16 November. At the close of the Crown case, the accused made an application that the Court direct the jury to enter verdicts of acquittal in respect of each count. In due course I made such a direction and verdicts of acquittal were duly entered. The accused was released from custody. These reasons set out the basis for that decision.

Factual Background

3 At approximately 1.30am on Sunday, 14 December 2008 the accused and a group of his friends, both male and female, were attending a nightclub known as “Beirut by Night”. Their table was located on an upstairs level.

4 At about the same time the deceased, his girlfriend, his brother and friends were in the same premises seated at a table on the ground floor level near to the dance floor. The dance floor was extremely crowded and persons on it were engaged in what was described as a vigorous form of dancing.

5 A short time later, some of the deceased’s group and most of the accused’s group were on the dance floor. After some initial pushing, a brawl broke out. The precise cause of the brawl was not established. The estimate of the numbers involved in the brawl varied between 8 and 30. The…

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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Details

Case: [2010] NSWSC 1327
Decision Date: 19 November 2010

CaseChat Overview and Summary

The case of R v El Masri (No 2) involved the appellant, who was charged with the crimes of murder and wounding with intent to cause grievous bodily harm. The matter was heard in the court of criminal appeal, where the appellant sought a verdict of acquittal by direction. The appellant's case rested on the assertion that the Crown's evidence contained significant gaps, and that the inferences upon which a finding of guilt could be made were not available to the jury. The appellant argued that any finding of guilt would involve speculation, not inference, and thus the jury should be directed to enter verdicts of acquittal.

The court was required to decide whether the appellant's argument regarding the gaps in the Crown's case was sufficient to warrant a direction for verdicts of acquittal. The legal issue at hand was whether the jury could reasonably infer guilt from the evidence presented, or whether such an inference would require speculation. The court considered the nature of the evidence presented, the inferences that could be drawn from it, and the standards of proof required in criminal cases.

The court found that the Crown's case contained significant gaps, and that the inferences upon which a finding of guilt could be made were not available to the jury. The court held that any finding of guilt would involve speculation, not inference, and that the jury could not reasonably infer guilt from the evidence presented. As a result, the court directed the jury to enter verdicts of acquittal on both charges. The court emphasised the importance of the standard of proof in criminal cases, and the need for the prosecution to establish guilt beyond reasonable doubt.

In light of the court's decision, the appellant was acquitted of both charges. The court's decision highlights the importance of the standard of proof in criminal cases, and the need for the prosecution to present a complete and coherent case. The court's direction for verdicts of acquittal demonstrates the court's willingness to ensure that justice is served, even in cases where the prosecution's case is lacking.

Orders