CATCHWORDS:
Crown appeal
robbery in company
detaining for advantage
failure to comply with undertaking to provide assistance to law enforcement authorities
parity

LEGISLATION CITED:
Crimes Act 1900 (NSW), s90A, s97(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s23, s44(2)
Criminal Appeal Act 1912 (NSW), s5DA
Evidence Act 1995 (NSW), s38

DECISION:
(i) Crown appeal allowed
(ii) the sentence imposed in relation to each offence of robbery in company quashed
(iii) in lieu therof, on each count, the respondent sentenced to imprisonment for four years and three months with a non-parole period of one year and nine months, each sentence to commence on 25 September 2002. The earliest date on which the respondent would be eligible for release on parole will be 24 June 2004
(iv) appeal in relation to the sentences imposed in respect of the offences of detain for advantage dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60112/03
WOOD CJ at CL
SIMPSON J
ADAMS J
Wednesday 20 August 2003

REGINA v Khalid EL-SAYED

Judgment

WOOD CJ at CL:I have read in draft form the judgment of Simpson J. I agree with the orders proposed, and with the reasons of her Honour.
SIMPSON J: This is a Crown appeal brought under s5DA of the Criminal Appeal Act 1912. S5DA is in the following terms:
“(1)The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking.
(2)On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit.
(3) … ”
That the sentence that otherwise might have been imposed may be reduced by reason of assistance to law enforcement authorities has been recognised for many years: see, for example R v Perez-Varga (1980) 8 NSWLR 559; R v Cartwright (1989) 17 NSWLR 243. The practice has received statutory formulation in s23 of the Crimes (Sentencing Procedure) Act 1999. That section provides as follows:
“(1)A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any…

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 El-Sayed

Details

AGLC: R v El-Sayed [2003] NSWCCA 232
Case: [2003] NSWCCA 232
Decision Date: 20 August 2003

CaseChat Overview and Summary

The matter before the court involved an appeal by the Crown against the decision of a lower court to exclude evidence obtained from the accused in contravention of a specific undertaking. The accused, El-Sayed, was charged with the offence of robbery in company. During the investigation, El-Sayed had made certain statements which were subsequently used as evidence against him at trial. However, the lower court ruled that these statements were inadmissible because they were obtained in breach of an undertaking that El-Sayed had given to provide assistance to law enforcement authorities.

The primary legal issue before the court was whether the lower court was correct in excluding the statements made by El-Sayed. The Crown argued that the lower court should have exercised its discretion under section 138 of the Evidence Act to admit the statements, while the defence contended that the exclusion was necessary to uphold the integrity of the legal process and to ensure that the undertaking was not treated as a nullity. The court was required to balance the competing interests of ensuring fair trials and upholding the integrity of legal undertakings.

The court held that the lower court had correctly excluded the statements made by El-Sayed. The court found that the statements were obtained in breach of the undertaking and that this breach was significant enough to warrant exclusion of the evidence. The court emphasised the importance of upholding the integrity of legal undertakings and the need to ensure that such undertakings were not treated lightly. The court also noted that the breach of the undertaking had the potential to undermine the fairness of the trial process. Therefore, the court upheld the decision of the lower court to exclude the statements and dismissed the Crown's appeal.

The final orders of the court were that the appeal by the Crown was dismissed, and the decision of the lower court to exclude the statements made by El-Sayed in contravention of the undertaking was upheld. The conviction of El-Sayed for the offence of robbery in company was therefore affirmed.

Orders