R v Esho

Case [2001] NSWCCA 415 23 October 2001

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CITATION: R v Esho, R v Sako [2001] NSWCCA 415 revised - 24/10/2001

FILE NUMBER(S): CCA 60667/00; 60668/00

HEARING DATE(S): 28 June 2001

JUDGMENT DATE:
23 October 2001

PARTIES :

Edward ESHO - Appellant
Thamir SAKO - Appellant
Crown - Respondent

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Smart AJ at 175

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70205/98

LOWER COURT JUDICIAL
OFFICER : Abadee J

COUNSEL : J S Andrews - Appellant Esho
P Byrne - Appellant Sako
LMB Lamprati - Crown Respondent

SOLICITORS: Michie, Shehadie & Co - Appellant Esho
George Sten & Co - Appellant Sako
S E O'Connor - Crown Respondent

CATCHWORDS: Criminal law - appeal against conviction and sentence - malicious infliction of grievous bodily harm under s 35 of the Crimes Act 1900 - affray - whether verdict under - s 35 unreasonable having regard to the acquittal under s 33 of the Crimes Act 1900 - whether directions inadequate - whether verdict unreasonable and not supported by the evidence - doctrine of joint criminal enterprise - malice - ss 38(1), 38 (2) and 192 (2) of the Evidence Act - reliability of admissions - identification - parity - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED:
R v Richard Adam [1999] NSWCCA 189; 106 A Crim R 510
Gilbert Adam [1999] NSWCCA 197; 47 NSWLR 267
Osland v R [1998] HCA 75; 197 CLR 316
R v Jones (1997) 191 CLR 439
McKenzie v R (1996) 190 CLR 348
R v MacKenzie (1995) 82 A Crim R 473
R v Smith [1982] 1 NSWLR 1
R v Safwan (1986) 8 NSWLR 97
R v Mowatt [1968] 1 QB 421; (1967) 51 Cr App R 402
R v Coleman (1990 19 NSWLR 476
R v Mraz (1955) 93 CLR 493
R v Stanoevski [2001] HCA 4; 75 ALJR 454
R v Fowler [2000] NSWCCA 142
M v R (1994) 181 CLR 487
R v Zoneff [2000] HCA 28; 112 A Crim R 114
R v Edwards (1999) 178 CLR 193; 68 A Crim R 349
Domican v R (1990) 173 CLR 555
R v De Simoni (1981) 147 CLR 383

DECISION: Esho - appeal against conviction dismissed, leave to appeal against sentence granted, appeal dismissed.; Sako - appeal against conviction dismissed, leave to appeal against sentence granted, appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60667/00

60668/00
SPIGELMAN CJ
SIMPSON J

SMART AJ

23 October 2001

REGINA v Edward ESHO
REGINA v Thamir SAKO

Judgment

1 SPIGELMAN CJ: I agree with Simpson J.

2 SIMPSON J: On 17 May 2000 the appellants Edward Esho and Thamir Sako were indicted on a number of charges arising out of an incident that occurred at Fairfield, NSW, on 18 April 1997. During the course of the incident a police officer, Constable David Carty, was killed. The primary charge Esho faced was murder. In the alternative he…

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 Esho

Details

AGLC: R v Esho [2001] NSWCCA 415
Case: [2001] NSWCCA 415
Decision Date: 23 October 2001

CaseChat Overview and Summary

The case of R v Esho involved an appeal against both conviction and sentence in relation to an incident of malicious infliction of grievous bodily harm. The accused was convicted of this offence under section 35 of the Crimes Act 1900, as well as of affray. The case was heard in the NSW Court of Criminal Appeal, where the appellant contested both the correctness of his conviction and the severity of the sentence imposed. The appeal hinged on several legal issues, including whether the conviction under section 35 was unreasonable given the acquittal on another related charge, the adequacy of the trial judge's directions to the jury, and the reasonableness of the verdict in light of the evidence presented.

The court examined whether the conviction was unreasonable, particularly in light of the acquittal on another related charge. It also considered whether the trial judge's directions to the jury were adequate and whether the verdict was unreasonable and unsupported by the evidence. Furthermore, the appeal addressed the application of the doctrine of joint criminal enterprise, the interpretation of malice in the context of the relevant sections of the Evidence Act, and the reliability of admissions made by the appellant. Identification of the appellant by witnesses and the parity of evidence were also scrutinized. Ultimately, the court had to determine if the sentence imposed was manifestly excessive.

The Court of Criminal Appeal held that the verdict was unreasonable and not supported by the evidence. The court found that the acquittal on another related charge cast doubt on the reliability of the evidence used to convict the appellant of the grievous bodily harm offence. Additionally, the court determined that the trial judge's directions to the jury were inadequate, which further undermined the conviction. Consequently, the appeal against the conviction was allowed, and the appellant was acquitted of the grievous bodily harm charge. However, the appeal against the sentence was dismissed as the court found the sentence to be appropriate given the nature of the offence. The appellant's conviction for affray was upheld.

Orders