R v Shambayati - [2016] QCA 100

SUPREME COURT OF QUEENSLAND

CITATION:

R v Shambayati [2016] QCA 100

PARTIES:

R
v
SHAMBAYATI, Sasan
(appellant/applicant)

FILE NO/S:

CA No 127 of 2015
DC No 960 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction & Sentence: 3 June 2015

DELIVERED ON:

19 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2015

JUDGES:

Fraser and Morrison JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURIES – OTHER CASES – where the appellant was found guilty of assault occasioning bodily harm following a trial by a jury – where during the empanelling of the jury the appellant allegedly called out ‘challenge’ but the juror was subsequently empanelled – where the appellant alleged that the jury had not been empanelled according to law – where the recording of the empanelment of the relevant potential juror was played – where in that recording the word ‘challenge’ is heard as a whisper – where defence counsel heard this and subsequently spoke with the appellant – where the trial judge did not hear the appellant – whether the word ‘challenge’ was audible to the court – whether the jury was empanelled according to law

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – where the evidence of the appellant was supported by independent witnesses and the evidence of the alleged co-offender – where the complainant’s evidence derived support from the evidence of other independent witnesses – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where the trial judge did not direct on the issues of self-defence or consensual fight – where the appellant submitted that it was possible that self-defence or a consensual fight was raised on the evidence – where the appellant did not rely upon either of those defences – whether either issue arose on the evidence – whether direction on these issues would have obfuscated the real issue – whether the appellant was denied a fair chance of acquittal

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to eight months imprisonment with a parole date fixed on 3 October 2015 – where the appellant was sentenced on the basis that there was no provocation, that it was not a premeditated assault and that it was a protracted assault – where the appellant had a relevant criminal history – whether the sentence was manifestly excessive

Criminal Code

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 Shambayati

Details

AGLC: R v Shambayati [2016] QCA 100
Case: [2016] QCA 100
Decision Date: 19 April 2016

CaseChat Overview and Summary

The appellant was found guilty of assault occasioning bodily harm and appealed against both the conviction and the sentence. The appeal raised several issues, including irregularities in the empanelment of the jury, the reasonableness of the verdict, and the adequacy of the sentence. The court considered whether the appellant's challenge to a juror was properly communicated, whether the verdict was reasonable given the evidence, and whether the sentence was appropriate.

Regarding the jury, the court examined the recording of the empanelment and found that the word 'challenge' was inaudible to the court but audible to defence counsel. The court held that since the trial judge was not informed of the challenge, the jury was not empanelled according to law. However, the court found that this did not affect the outcome of the appeal, as the evidence supported the guilty verdict. The court also considered whether the trial judge should have directed the jury on self-defence or a consensual fight, but concluded that these issues were not raised by the evidence and would not have changed the verdict.

The court found that the verdict was reasonable and supported by the evidence, and that the sentence was not manifestly excessive given the appellant's criminal history and the circumstances of the assault. The court dismissed the appeal against conviction and refused the application for leave to appeal against sentence. The sentence of eight months imprisonment with a parole date fixed on 3 October 2015 was upheld.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Shambayati [2016] QCA 100
PARTIES:	R v SHAMBAYATI, Sasan (appellant/applicant)
FILE NO/S:	CA No 127 of 2015 DC No 960 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction & Sentence: 3 June 2015
DELIVERED ON:	19 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	3 November 2015
JUDGES:	Fraser and Morrison JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURIES – OTHER CASES – where the appellant was found guilty of assault occasioning bodily harm following a trial by a jury – where during the empanelling of the jury the appellant allegedly called out ‘challenge’ but the juror was subsequently empanelled – where the appellant alleged that the jury had not been empanelled according to law – where the recording of the empanelment of the relevant potential juror was played – where in that recording the word ‘challenge’ is heard as a whisper – where defence counsel heard this and subsequently spoke with the appellant – where the trial judge did not hear the appellant – whether the word ‘challenge’ was audible to the court – whether the jury was empanelled according to law CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – where the evidence of the appellant was supported by independent witnesses and the evidence of the alleged co-offender – where the complainant’s evidence derived support from the evidence of other independent witnesses – whether the verdict was unreasonable or insupportable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where the trial judge did not direct on the issues of self-defence or consensual fight – where the appellant submitted that it was possible that self-defence or a consensual fight was raised on the evidence – where the appellant did not rely upon either of those defences – whether either issue arose on the evidence – whether direction on these issues would have obfuscated the real issue – whether the appellant was denied a fair chance of acquittal CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to eight months imprisonment with a parole date fixed on 3 October 2015 – where the appellant was sentenced on the basis that there was no provocation, that it was not a premeditated assault and that it was a protracted assault – where the appellant had a relevant criminal history – whether the sentence was manifestly excessive Criminal Code