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R v Nasiri

R v Nasiri

Case [2015] NSWSC 1649 9 November 2015

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Supreme Court

New South Wales

Medium Neutral Citation: R v Nasiri [2015] NSWSC 1649
Hearing dates: 5 November 2015
Date of orders: 09 November 2015
Decision date: 09 November 2015
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) The plea in bar raised by the accused Mohammed Nasiri in respect of count 36 is sustained.
(2) The accused Mohammed Nasiri is discharged with respect to count 36.

Catchwords:
CRIMINAL LAW – autrefois convict – plea in bar – participate in a criminal group – where accused previously sentenced for same offence – criminal group the same in each charge –Brothers For Life – comparison of elements – whether identification of different particulars sufficient to defeat plea in bar – plea in bar sustained – accused discharged on count
CRIMINAL PROCEDURE – autrefois convict – correct procedure on contention of plea in bar – whether plea of not guilty should remain on foot when plea in bar asserted – correct form of verdict
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Akbari v R; Nasiri v R [2015] NSWCCA 240
Island Maritime v Filipowski [2006] HCA 30; 226 CLR 328
Li Wan Quai v Christie [1906] HCA 42; 3 CLR 1125
Pearce v The Queen (1998) HCA 57; 194 CLR 610
R v Akbari; R v Nasiri (District Court (NSW) Zahra J, 27 June 2014, unrep)
R v Dodd (1991) 56 A Crim R 451
R v Stone [2005] NSWCCA 34; 64 NSWLR 413
Richards v The Queen [1993] AC 217.
Saraswati v The Queen [1991] HCA 21; 172 CLR 1
The King v Gamble [1947] VLR 491
The King v Kent-Newbold [1939] HCA 37; 62 CLR 398
Category: Principal judgment
Parties: Regina
Mohammed Nasiri (Accused)
Representation:
Counsel:
K McKay & P Hogan (Crown)
P Doyle (Accused)
Solicitors:
Solicitor for the NSW DPP (Crown)
Doyle Legal (Accused)

File Number(s): 2014/86158
Publication restriction: Non-publication order until completion of the trial or trials.

Judgment

On 27 July 2015 Mohammed Nasiri was arraigned along with seven other men and one woman on an indictment containing 36 counts. Because of the number of accused persons, I will simply refer to him by his surname. Nasiri was charged with three of the offences on the indictment. In counts 4 and 5 he was charged with offences arising out of an incident at Eagle Vale on 2 August 2013. Count four alleges that Nasiri, along with three other accused, committed an offence of break, enter and steal in circumstances of special aggravation namely being armed with a firearm. Count five alleges that “in the course of an organised criminal activity, did fire a firearm at a dwelling house with reckless disregard for the safety of another person.” I will refer to these as “the Eagle Vale offences”.
The other offence with which Nasiri presently stands charged is count 36 which is in the following terms:

“Between 1 July 2013 and…

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 Nasiri

Details

AGLC: R v Nasiri [2015] NSWSC 1649
Case: [2015] NSWSC 1649
Decision Date: 09 November 2015

CaseChat Overview and Summary

The case of R v Nasiri involved the defendant, who was charged with participating in a criminal group known as Brothers For Life, an offence he had been previously convicted of. The High Court of Australia was tasked with determining the applicability of the plea in bar doctrine, which prevents an individual from being tried twice for the same offence. The central issue before the court was whether the identification of different particulars in the charges was sufficient to distinguish the current offence from the previous conviction, thereby allowing the trial to proceed. The court also examined the procedural aspects of asserting a plea in bar and the appropriate form of verdict when such a plea is sustained.

The court examined the nature of the offence of participating in a criminal group, focusing on whether the elements of the offence in the two charges were substantially the same. It was determined that, despite the different particulars identified in each charge, the essence of the offence remained unchanged. The court held that the plea in bar was correctly sustained as the core elements of the offence were identical in both instances, and the different particulars did not alter the fundamental nature of the offence. The procedural aspect of maintaining a plea of not guilty alongside a plea in bar was also addressed, with the court affirming that the plea of not guilty should remain on foot until the plea in bar is resolved. The court ultimately sustained the plea in bar, resulting in the defendant being discharged on the count in question.

In conclusion, the court's decision in R v Nasiri underscores the importance of the plea in bar doctrine in preventing double jeopardy. The court's reasoning emphasised the need for a precise comparison of the elements of the offence in each charge to determine the applicability of the plea. The procedural guidance provided ensures clarity in the application of the plea in bar, protecting defendants from being tried twice for the same offence. The final orders of the court sustained the plea in bar and discharged the defendant on the count in question, highlighting the significance of the plea in bar in criminal proceedings.

Orders