R v Houssein - [2003] NSWCCA 74

CITATION: R v HOUSSEIN [2003] NSWCCA 74

HEARING DATE(S): 10 December 2002

JUDGMENT DATE:
28 March 2003

JUDGMENT OF: Meagher JA at 1; Hulme J at 2; Hidden J at 61

DECISION: See paragraph 60

PARTIES :
Regina
Mustafa Max HOUSSEIN

FILE NUMBER(S): CCA 60382/02

COUNSEL: Crown: EA Wilkins
Appellant: MC Ramage QC

SOLICITORS: Crown: SE O'Connor
Appellant: Voros Lawyers

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0022

LOWER COURT
JUDICIAL OFFICER : Gibson DCJ

- 22 -

60382/02

MEAGHER JA
HULME J
HIDDEN J

Friday, 28 March 2003

R v Mustafa Max HOUSSEIN

Judgment

1 MEAGHER JA: I agree with Hulme J.

2 HULME J: On 8 April 2002 Mustafa Hussein pleaded not guilty to 2 counts on which he was indicted before Judge Judith Gibson, viz.-

(1) For that he on 25 October 2001… did maliciously inflict grievous bodily harm upon David Houssein with intent thereby to do grievous bodily harm to the said David Houssein.

(2) Further that he on 25 October 2001… did threaten to cause an injury to Christopher Petersen intending thereby to influence Christopher Petersen a person intended to be called as a witness in a judicial proceeding, namely Regian v Max Houssein to withhold true evidence.

3 The first count was laid under s33 of the Crimes Act. Section 34 and 35 of that Act relevantly provide:-

34. Where, on the trial of a person for an offence under s33, the jury are satisfied that the accused is guilty of the wounding, or inflicting grievous bodily harm, mentioned in the indictment, but are not satisfied that the person is guilty of the intent charged therein, they may acquit the person of such intent and find the person guilty of an offence under s35, and the person shall be liable to punishment accordingly.

35. (i) Whoever maliciously by any means:-

(b) Inflicts grievous bodily harm upon any person,

shall be liable to imprisonment for 7 years

4 It was thought desirable to formulate in writing the alternative for which ss34 and 35 provided. This was done by counsel appearing for the Appellant at his trial and, at least implicitly, acquiesced in by counsel for the Crown and her Honour. The formulation was in terms:-

That on 25 October 2001 … (the accused) did maliciously inflict grievous bodily harm upon David Houssein and did thereby occasion grievous bodily harm to the said David Houssein.

5 On 12 April 2002, the jury acquitted the Appellant on the two charges in the indictment but convicted him of the alternative charge. On 14 June 2002, her Honour sentenced him to imprisonment for 3 years including a non-parole period of 2 years and 3 months, both periods commencing on 25 October 2001.

6 A Notice of Appeal dated 20 June 2002 and stating 4 grounds of appeal was filed. On 14 October 2002 another document “Grounds of Appeal” listing 9 grounds was received by the Registry. It apparently was not served on…

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 Houssein

Details

AGLC: R v Houssein [2003] NSWCCA 74
Case: [2003] NSWCCA 74
Decision Date: 28 March 2003

CaseChat Overview and Summary

In the case of R v Houssein, the Court of Criminal Appeal of New South Wales was called upon to review the conviction and sentence of Mustafa Max Houssein, who was found guilty of inflicting grievous bodily harm upon his brother, David Houssein. The primary legal issues revolved around the propriety of the trial judge's directions to the jury, the admission of certain evidence, and the overall fairness of the trial. Mustafa Houssein appealed against his conviction and sentence, presenting nine grounds for appeal. The Court found that while some of the grounds did not succeed, others did, particularly concerning the trial judge's admission of evidence related to an apprehended violence order (AVO) that was irrelevant to the Appellant's credibility but highly prejudicial.

The Court concluded that the admission of the AVO evidence constituted a substantial error that could not be overlooked under the proviso to s6 of the Criminal Appeal Act. Consequently, the Court found that a substantial miscarriage of justice had occurred. Therefore, the appeal against conviction was allowed, the conviction was quashed, and the case was ordered to be retried, subject to the discretion of the Director of Public Prosecutions. The Court also noted that it was not necessary to address the appeal against sentence as the conviction was quashed. Justices Hulme and Hidden concurred with the decision, while Justice Meagher expressed reservations about some of the criticisms of the trial judge's conduct.

Orders