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R v Nassif

R v Nassif

Case [2004] NSWCCA 433 16 December 2004

Identification Evidence

Criminal Law

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CITATION: R v Nassif [2004] NSWCCA 433

HEARING DATE(S): 4 November 2004

JUDGMENT DATE:
16 December 2004

JUDGMENT OF: Simpson J at 1; Adams J at 71; Davidson AJ at 72

DECISION: (i) leave to appeal granted; (ii) appeal dismissed; judgment of the District Court affirmed.

CATCHWORDS: interlocutory District Court judgment - application for separate trial of different counts - tendency evidence - coincidence evidence - prejudice - identification evidence

LEGISLATION CITED: Crimes Act 1900 s61L, s86(2), s154A, s86(1), s344A(1)
Criminal Appeal Act 1912 s5F
Criminal Procedure Act 1986 s21, s29
Evidence Act 1995 s97, s98, s101, s135, s137

CASES CITED: R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1
Hoch v The Queen [1988] HCA 50; 165 CLR 292
Pfennig v The Queen [1995] HCA 7; 182 CLR 461
R v OGD [No 2] [2000] NSWCCA 404; 50 NSWLR 433

PARTIES :
Crown
George Nassif - Applicant

FILE NUMBER(S): CCA 2004/2298

COUNSEL: P Power SC - Crown
JW Conomos - Applicant

SOLICITORS: SE O'Connor - Crown
S Kavanagh - Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0247

LOWER COURT
JUDICIAL OFFICER : Shillington ADCJ

2004/2298

SIMPSON J
ADAMS J
DAVIDSON AJ
Thursday 16 December 2004

REGINA v George NASSIF

Judgment

1 SIMPSON J: By application filed on 7 September 2004 the applicant, George Nassif, seeks leave, pursuant to s5F of the Criminal Appeal Act 1912, to appeal against an interlocutory decision of Judge Shillington in the District Court of 1 September 2004. The decision was given in relation to an application then made by the applicant for the severance of counts contained in an indictment which the Crown proposes to present against him. The Crown did not argue against the grant of leave.

2 The indictment, a copy of which was provided to Shillington ADCJ and to this Court, contains nine counts, relating to four separate episodes of alleged criminality on the part of the applicant. The counts on the indictment are:

1, 3 and 8: take and drive motor vehicle without the consent of the owner ( Crimes Act 1900, s154A);

2 and 9: aggravated take person without consent with intent to obtain an advantage (s86(2));

4 and 6: indecent assault (s61L);

3 In a document entitled “Application to sever counts on an indictment” the applicant’s solicitor outlined the allegations against the applicant. The Crown also provided a summary of allegations in its written submissions, and statements of proposed witnesses were put before Shillington ADCJ. From a combination of these documents it can be seen that the allegations against the applicant are, in brief, as follows:

counts 1 and 2

4 At about 4.00pm on 14 December 2001, the applicant stole an EA Ford Falcon (registered number UMY 841) from the Marrickville Metro Shopping Centre. He drove the vehicle to Fitzroy Street (also in Marrickville) 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 Nassif

Details

AGLC: R v Nassif [2004] NSWCCA 433
Case: [2004] NSWCCA 433
Decision Date: 16 December 2004

CaseChat Overview and Summary

The case of R v Nassif was heard in the District Court of New South Wales. The accused, Nassif, was facing multiple charges including armed robbery and assault. The primary dispute involved the court's handling of a separate trial for different counts, the admissibility of tendency and coincidence evidence, and the potential for prejudice, particularly in relation to identification evidence. The prosecution sought to introduce evidence from a prior unrelated crime, arguing it demonstrated a propensity to commit such offences, while the defence argued that such evidence could unfairly prejudice the jury.

The court was required to decide whether the separate trial application was justified, the admissibility of the tendency and coincidence evidence, and if the evidence could lead to an unfair trial due to prejudice. The central issue was balancing the probative value of the evidence against the risk of unfair prejudice. The court needed to assess whether the probative value of the evidence substantially outweighed the danger of unfair prejudice to the accused.

The court ruled that the application for a separate trial of different counts was not warranted as the evidence was closely related and would not unduly prejudice the accused. Regarding the tendency evidence, the court found that while the evidence of the prior crime demonstrated a propensity, it was not so prejudicial as to exclude its admissibility. The court emphasised that the evidence was necessary to establish a complete picture of the circumstances and that the jury could be directed to consider the evidence carefully. The identification evidence was deemed to have minimal prejudicial effect, as the witnesses had ample opportunity to observe the accused and their descriptions were consistent. The court concluded that the evidence, when properly directed, would not lead to an unfair trial.

The final orders were that the separate trial application was denied, the tendency and coincidence evidence was admissible, and the identification evidence would be subject to appropriate jury directions to mitigate any potential prejudice.

Orders