R v Mazaydeh (No 1)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Mazaydeh (No 1)

Citation:

[2014] ACTSC 279

Hearing Date(s):

3 and 4 September and 27 October 2014

DecisionDate:

27 October 2014

Before:

Murrell CJ

Decision:

Directed verdict of not guilty on the counts of burglary, theft and attempt to intentionally and unlawfully render unconscious.

Category:

Interlocutory application

Catchwords:

CRIMINAL LAW – PARTICULAR OFFENCES – Judge alone trial – application for “Prasad direction” – burglary – theft – attempt to choke and render insensible – assault occasioning actual bodily harm – common assault – threat to cause property damage

Legislation Cited:

Crimes Act 1900 (ACT) s 27(3)

Criminal Code 2002 (ACT) ss 44, 306, 308, 311

Theft Act 1968 (UK)

Cases Cited:

R v Dardovska (2003) 6 VR 628
R v Lloyd [1985] QB 829
R v Prasad (1979) 23 SASR 161

Sharp v McCormick [1986] VR 869

Parties:

The Queen (Crown)

Mohammed Mazaydeh (Accused)

Representation:

Counsel

Ms A Begley (Crown)

Mr A Hopkins (Accused)

Solicitors

Director of Public Prosecutions (ACT) (Crown)

Kamy Saeedi Lawyers (Accused)

File Number(s):

SCC 3 of 2014; SCC 223 of 2014

MURRELL CJ:

Introduction

1. At the close of the Crown case, the accused seeks a “Prasad direction” (see: R v Prasad (1979) 23 SASR 161) in relation to three of the matters before the Court:

(1) Remain in a building, being the complainant’s apartment, as a trespasser with intent to commit theft of property in the building contrary to s 311 of the Criminal Code 2002 (ACT) (Criminal Code);

(2) Dishonestly appropriate the complainant’s mobile telephone with intent to permanently deprive her of that property (contrary to s 308 of the Criminal Code), and;

(3) Attempt to intentionally and unlawfully choke the complainant so as to render her insensible or unconscious (contrary to s 27(3)(a) of the Crimes Act 1900 (ACT) (Crimes Act) read with s 44 of the Criminal Code).

1. It is for the accused to satisfy the Court that the evidence supporting each charge is so lacking in weight and reliability that it cannot form a proper foundation for a conviction.

1. The Crown alleges that the accused was a friend and former partner of the complainant.  On 26 October 2013, the pair went shopping before returning to the complainant’s apartment.  As they were about to enter the apartment, the complainant received an incoming call on her mobile telephone.  Thereafter, the accused made repeated and insistent inquiries as to the identity of the caller.  He suspected that the caller was a male.  It is the prosecution case that, in the course of pressing the complainant for the information, the accused assaulted the complainant and threatened her in a variety of ways.

Burglary and theft

1. In relation to the charges of burglary and theft, the accused submits that the prosecution case is incapable of reliably supporting an element of those offences, i.e. that the accused intended to permanently deprive the complainant of her mobile telephone.  The accused submits…