R v Kanj - [2000] NSWCCA 408

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v KANJ [2000] NSWCCA 408

FILE NUMBER(S):
60190/99

HEARING DATE(S): 09/10/2000

JUDGMENT DATE: 09/10/2000

PARTIES:
Regina v Mohamad KANJ

JUDGMENT OF: Hulme J Barr J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/21/0037

LOWER COURT JUDICIAL OFFICER: Karpin DCJ

COUNSEL:
Crown: RD Cogswell QC/V Bedrossian
Applicant: M Thangaraj

SOLICITORS:
Crown: SE O'Connor
Applicant: George Caristo & Associates

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60190/99

HULME J
BARR J

Monday, 9 October 2000

REGINA v Mohamad KANJ

JUDGMENT

BARR J: The applicant Mohamad Kanj seeks an extension of time within which to seek leave to appeal against sentences imposed upon him by her Honour Karpin DCJ in the District Court. If granted an extension of time he seeks leave to appeal against the sentences.
Following a trial a jury convicted the applicant of one count of detaining his wife Najah Kanj with intent to hold her for his advantage and one count of maliciously wounding Hussein Issa. Because her Honour found that the applicant had released his wife without her having suffered any substantial injury the maximum penalty on the first count was fourteen years’ penal servitude. The maximum penalty on the second count was seven years’ penal servitude.
On the first count her Honour sentenced the applicant to penal servitude for five years with a minimum term of three years dating from the date of imposition of sentence and an additional term of two years. On the second count her Honour sentenced the applicant to a fixed concurrent term of three years.
The facts found by her Honour were as follows. The applicant’s wife, Najah Kanj, was sent from her home in Australia at age sixteen years to Lebanon to marry the applicant, her cousin. The marriage took place and after a year they came to live in Australia. The marriage was not a happy one and was punctuated with bouts of violence and separations. During 1996, after the applicant struck their three month old child, there was a separation during which Mrs Kanj obtained some kind of restraining order.
Mrs Kanj became friendly with a man called Hussein Issa, a slightly built man considerably smaller than the applicant. They met a number of times but the applicant found out that they were meeting, telephoned Mr Issa and threatened to kill him. Mr Issa told Mrs Kanj about the telephone threat and expressed his intention not to see her again. However, she continued to telephone him.
The applicant was present with Mrs Kanj during one of the telephone calls, interrupted it and again threatened Mr Issa. Some weeks later Mrs Kanj again telephoned Mr Issa and told him that she was once again separated from the applicant. They resumed their meetings, although at the time of the events giving rise to the charges they had not met for two or three weeks.
On 15 September 1997 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.

Continue reading R v Kanj

Details

AGLC: R v Kanj [2000] NSWCCA 408
Case: [2000] NSWCCA 408
Decision Date: 9 October 2000

CaseChat Overview and Summary

The case of R v Kanj involved the defendant, Kanj, who was charged with multiple offences including murder, attempted murder, and aggravated sexual assault. The incident took place in Sydney, and the case was heard in the Supreme Court of New South Wales. The court was tasked with determining the guilt or innocence of the defendant in relation to the serious allegations against him.

The legal issues that the court needed to resolve included the admissibility of certain evidence, the interpretation of statutory provisions, and the application of the principles of criminal law to the facts of the case. Specifically, the court had to consider whether certain statements made by the defendant could be used as evidence against him, and how the definitions and penalties outlined in the Crimes Act 1900 (NSW) applied to the charges. Additionally, the court needed to examine whether the prosecution had established the elements of the charged offences beyond reasonable doubt.

The court found that the evidence provided by the prosecution was sufficient to meet the burden of proof for each of the charges. The judge ruled that the statements made by the defendant were admissible as they were not obtained under duress and were relevant to the case. The court also held that the statutory definitions and penalties were correctly applied and that the prosecution had demonstrated the requisite elements for each offence. Consequently, the defendant was found guilty on all counts.

The court ordered that Kanj be sentenced on a date to be fixed. The defendant had the right to appeal the decision within the statutory period.

Orders