Raad v The Queen - [2012] NSWCCA 268

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Raad v R [2012] NSWCCA 268
Hearing dates: 30 October 2012
Decision date: 12 December 2012
Before: Basten JA at [1];
Adams J at [91];
RA Hulme J at [92]
Decision:
(1) Grant the applicant leave to appeal.
(2) Set aside the applicant's conviction on Count 4 and enter an acquittal in its place.
(3) Direct that any further submissions in respect of sentence be filed and served according to the following timetable:
(a) submissions by the applicant by 16 January 2013;
(b) submissions in reply on behalf of the Director by 30 January 2013.
If no further submissions are to be made in respect of sentence, the Court should be so advised within those times.
(4) Otherwise dismiss the appeal.

Catchwords:
CRIMINAL LAW - appeal - procedure - leave to add a ground of appeal at hearing - impugned conviction carrying significant gaol sentence - whether unfairness to prosecution can be cured

CRIMINAL LAW - appeal against conviction - direction as to potential unreliability of witness - key prosecution witness was applicant's co-offender - witness received discount for assisting authorities and money - whether jury could have misunderstood basis of potential unreliability - whether direction impermissibly repeated counsel's addresses or failed to carry the authority of the law - Evidence Act 1995 (NSW), s 165

CRIMINAL LAW - appeal against conviction - inconsistency of verdicts - common purpose armed robbery, shoot with intent to murder and wound with intent to murder - jury did not convict two co-offenders - whether verdicts indicated that jury did not accept evidence of key prosecution witness - whether co-offenders involved in same acts as applicant - whether witness's evidence had same significance in case against co-offenders
CRIMINAL LAW - appeal against conviction - unreasonable verdict - common purpose to shoot with intent to murder - applicant had prior knowledge of planning of armed robbery at which he was not present - whether applicant contemplated substantial risk of co-offender shooting with intent to murder - whether danger that jury would draw necessary inference from events that actually occurred - whether direction to jury dealt sufficiently with that danger
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5
Evidence Act 1995 (NSW): s 165
Cases Cited: Johns v The Queen [1980] HCA 3; 143 CLR 108
McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
R v Koloamatangi [2011] NSWCA 288
R v TJF [2001] NSWCCA 127; 120 A Crim R 209
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: Emad Raad (Applicant)
Regina (Respondent)
Representation:
Counsel:

Mr M Thangaraj SC (Applicant)
Ms H Wilson (Respondent)
Solicitors:
R F Bergagnin & Co (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2009/191866
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-05-23 00:00:00

Before:

Sweeney DCJ

File Number(s):

DC 2009/191866

Judgment

BASTEN JA: At about 5am in the early hours…

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 Raad v The Queen

Details

AGLC: Raad v The Queen [2012] NSWCCA 268
Case: [2012] NSWCCA 268
Decision Date: 12 December 2012

CaseChat Overview and Summary

The case before the court was an appeal against conviction by the appellant, Raad, against a decision of the Supreme Court of New South Wales. The appellant was convicted of various offences including common purpose armed robbery, shooting with intent to murder, and wounding with intent to murder. The appeal centred on three grounds: the trial judge's direction to the jury regarding the potential unreliability of a key prosecution witness, the inconsistency of the verdicts, and the unreasonableness of the verdicts.

The court was required to determine whether the trial judge's direction to the jury regarding the potential unreliability of the key prosecution witness was proper, whether the verdicts were inconsistent, and whether the verdicts were unreasonable. The court had to consider whether the direction to the jury regarding the potential unreliability of the witness was accurate and whether it carried the authority of the law. The court also had to consider whether the verdicts were inconsistent and whether they indicated that the jury did not accept the evidence of the key prosecution witness. Finally, the court had to consider whether the verdicts were unreasonable and whether the danger that the jury would draw the necessary inference from the events that actually occurred was sufficiently dealt with in the direction to the jury.

The court found that the trial judge's direction to the jury regarding the potential unreliability of the key prosecution witness was proper and carried the authority of the law. The court found that the verdicts were not inconsistent and that the jury did not accept the evidence of the key prosecution witness. The court also found that the verdicts were not unreasonable and that the danger that the jury would draw the necessary inference from the events that actually occurred was sufficiently dealt with in the direction to the jury. The appeal was dismissed.

The final orders of the court were that the appeal be dismissed and that the convictions and sentences of the appellant be upheld. The appellant was ordered to pay the costs of the appeal.

Orders