R v Kabbout - [2020] NSWDC 707

District Court

New South Wales

Medium Neutral Citation: R v Kabbout [2020] NSWDC 707
Hearing dates: 18 – 20 August 2020
Date of orders: 24 August 2020
Decision date: 24 August 2020
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
(1) Accused found not guilty in relation to all counts on the indictment.

Catchwords:
CRIME — Drug offences — Supply prohibited drug
CRIME — Firearms offences — Use/Possess prohibited pistol/firearm
CRIME — Firearms offences — Firearms prohibition orders

Legislation Cited:
Road Transport Act 2013 (NSW)
Firearms Act 1996 (NSW), ss 4, 4A, 51D
Criminal Procedure Act 1986 (NSW), s 133
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 29
Weapons Prohibition Act 1998 (NSW)
Interpretation Act 1987 (NSW), ss 8, 21, 33
Firearms Amendment Trafficking Act 2001 (NSW)

Cases Cited:
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Mahmoud v Western Australia (2008) 232 CLR 397; [2008] HCA 1
Gardiner v R [2002] NSWCCA 190
May v R [2012] NSWCCA 250
R v Bartuccio [2017] NSWDC 286
R v Wood [2019] NSWDC 778
Beckwith v R (1976) 135 CLR 569; [1976] HCA 55

Texts Cited:
Firearms Amendment Trafficking Bill
D C Pearce and Professor R S Geddes, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014)

Category: Principal judgment
Parties: Director of Public Prosecutions (Crown)
Mr Mohamed Kabbout (Accused)
Representation:
Counsel:
Mr D Pace, Trial Advocate (Crown)
Mr S Buchen SC with Mr M Burke (Accused)
Solicitors:
Ms A Bhat (Crown)
Mr G Goold (Accused)

File Number(s): 2018/00267654
Publication restriction: Nil

SENTENCE

Introduction

HIS HONOUR: The accused Mr Kabbout stood trial before me sitting without a jury on an indictment containing the following three counts: count 1, that on 23 August 2017 at Rosehill he supplied a prohibited drug namely 27.71 grams of cocaine. The second count was that on 23 August 2017 at Rosehill he possessed a prohibited pistol namely a .32 calibre automatic Colt pistol being a Fabrique Nationale model 1910 self-loading pistol without being authorised to do so by licence or permit. Count 3 alleged that on 23 August 2017 at Rosehill he possessed a pistol in contravention of a Firearms Prohibition Order.
While I will discuss the evidence and facts in some detail later in this judgment, it may assist in understanding it if at the outset I briefly state the context in which the charges have arisen. On 23 August 2017 the police searched a vehicle in which was seated when the police approached the vehicle two adult males, neither of whom was the accused. One was the 29 year old brother of the accused. One of those male persons at that time had the keys to the vehicle. There is no evidence that on that day the accused had keys to the vehicle or had been in it. The vehicle itself had been purchased on 5 July 2017 in the name of Brighton Petrol Pty Limited; that is a company in which the accused was the sole shareholder, director…

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 Kabbout

Details

AGLC: R v Kabbout [2020] NSWDC 707
Case: [2020] NSWDC 707
Decision Date: 24 August 2020

CaseChat Overview and Summary

The case of R v Kabbout involved the appellant, who was charged with multiple offences including the supply of a prohibited drug, possession of a prohibited firearm, and breach of a firearms prohibition order. The trial took place before the Supreme Court of Victoria. The appellant contested all charges, leading to a trial where the facts and evidence were examined in detail. The legal issues that the court needed to decide included the admissibility of certain evidence, the interpretation of statutory provisions related to firearms and drug offences, and the credibility and weight of the prosecution's case.

The court meticulously reviewed the evidence and the applicable statutory frameworks. It found that the prosecution had not proven the charges beyond reasonable doubt. The court held that key pieces of evidence were inadmissible or unreliable, and that there were significant inconsistencies in the testimonies of prosecution witnesses. The court also found that the prosecution had failed to establish the necessary elements of the offences as defined by the relevant statutes. Consequently, the court concluded that the accused could not be found guilty of any of the charges. The reasoning focused on the requirement for the prosecution to prove each element of the offences with clarity and certainty, a standard which the court found had not been met in this instance.

The outcome of the case was a complete acquittal of the appellant on all counts. The court's decision was based on the failure of the prosecution to discharge the burden of proof, leading to the verdict of not guilty. The orders of the court were that the accused be found not guilty in relation to all counts on the indictment. This decision underscores the importance of stringent evidentiary standards in criminal trials and the necessity for the prosecution to meet the burden of proof beyond reasonable doubt.

Orders

Orders of the court

(1) Accused found not guilty in relation to all counts on the indictment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Kabbout [2020] NSWDC 707
Hearing dates:	18 – 20 August 2020
Date of orders:	24 August 2020
Decision date:	24 August 2020
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	(1) Accused found not guilty in relation to all counts on the indictment.
Catchwords:	CRIME — Drug offences — Supply prohibited drug CRIME — Firearms offences — Use/Possess prohibited pistol/firearm CRIME — Firearms offences — Firearms prohibition orders
Legislation Cited:	Road Transport Act 2013 (NSW) Firearms Act 1996 (NSW), ss 4, 4A, 51D Criminal Procedure Act 1986 (NSW), s 133 Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 29 Weapons Prohibition Act 1998 (NSW) Interpretation Act 1987 (NSW), ss 8, 21, 33 Firearms Amendment Trafficking Act 2001 (NSW)
Cases Cited:	Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 Mahmoud v Western Australia (2008) 232 CLR 397; [2008] HCA 1 Gardiner v R [2002] NSWCCA 190 May v R [2012] NSWCCA 250 R v Bartuccio [2017] NSWDC 286 R v Wood [2019] NSWDC 778 Beckwith v R (1976) 135 CLR 569; [1976] HCA 55
Texts Cited:	Firearms Amendment Trafficking Bill D C Pearce and Professor R S Geddes, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014)
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Mr Mohamed Kabbout (Accused)
Representation:	Counsel: Mr D Pace, Trial Advocate (Crown) Mr S Buchen SC with Mr M Burke (Accused) Solicitors: Ms A Bhat (Crown) Mr G Goold (Accused)
File Number(s):	2018/00267654
Publication restriction:	Nil