Regina v Abdulkader and Hohaia [No 1] - [2006] NSWSC 198

CITATION: Regina v Abdulkader & Hohaia [No 1] [2006] NSWSC 198

HEARING DATE(S): 15-17/02/06
20-24/02/06
27-28/02/06
01-03/03/06
06-09/03/06
14-17/03/06
20-21/03/06

JUDGMENT DATE :
29 March 2006

JURISDICTION: Common Law Division
Criminal List

JUDGMENT OF: Kirby J

DECISION: Leave to tender statement refused.

CATCHWORDS: Criminal Practice & Procedure - Application under s108(3) Evidence Act 1995 - cross examination of witness in support of alibi by Crown - implication that reconstruction or evidence the result of suggestion - application for leave s108(3) Evidence Act to tender prior consistent evidence - whether statement addresses credibility attack - whether leave under s192(2) should be given.

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Graham v The Queen (1998) 195 CLR 606
DBG (2002) 133 A Crim R 227
BD (1997) 94 A Crim R 131

PARTIES: Regina
Mostafa Abdulkader
John Hohaia

FILE NUMBER(S): SC 2005/1091; 2005/1092

COUNSEL: T R Hoyle SC (Crown)
G Scragg (Abdulkader)
P McGrath (Hohaia)

SOLICITORS: R McMurtrie - DPP (Crown)
Murphy's Lawyers
G R Adler - LAC

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID KIRBY

Wednesday 29 March 2006

2005/1091 REGINA v Mostafa ABDULKADER
2005/1092 REGINA v John HOHAIA
JUDGMENT [No 1] - Application by Mostafa Abdulkader under s108(3) of the Evidence Act 1995

1 KIRBY J: During the course of a trial for murder, application was made on behalf of Mostafa Abdulkader, one of the accused, for leave under s108(3) of the Evidence Act 1995 ("the Act") to tender a statement of a witness, Robert Dibb. After argument, I made a ruling, refusing leave. I stated that I would give my reasons later. I now set out those reasons.

The Trial.

2 Mostafa Abdulkader and John Hohaia were jointly indicted for the murder of Alexander Szirt at Belmore on 3 December 2003. On the evening of 2 December 2003 at about 10.30 pm, Alexander Szirt went to premises known as 52 Lucerne Street, Lakemba, the home of John Hohaia's mother. At some time after 1.35 am the following morning, 3 December 2003, he was brutally assaulted. He was then bundled into the back seat of the vehicle which he had driven to 52 Lucerne Street, either unconscious or already dead. The vehicle was then driven by one or other of the accused to Wiley Park. It was observed at Wiley Park at 5.15 am. Mr Szirt's body was ultimately discovered by passers-by at about 3.00 pm. The police were called and an investigation into his murder began.

3 The issue arose after the Crown had completed its case. Before the trial began, notice was given on behalf of Mr Abdulkader that he would rely upon an alibi (Exhibit U). Mr Abdulkader gave evidence in which he raised alibi. He acknowledged that he had been at 52 Lucerne Street on the evening of 2 December 2003 and had been introduced to Alexander Szirt. However, he said he left the premises at approximately 12.15 am, before any violence. He then walked to Haldon Street Lakemba…

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.

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Details

Case: [2006] NSWSC 198
Decision Date: 29 March 2006

CaseChat Overview and Summary

In Regina v Abdulkader and Hohaia [No 1], the accused were on trial for various criminal charges including serious drug and firearms offences. The case involved an application by the Crown under section 108(3) of the Evidence Act 1995 to cross-examine a witness in support of the accused’s alibi. The prosecution sought to challenge the credibility of the witness by implying that the reconstruction of events or evidence provided was the result of suggestion. The accused moved for leave to tender prior consistent statements to counter this credibility attack, and sought leave under section 192(2) of the Evidence Act.

The primary legal issues before the court were whether the prior consistent statements could be admitted to address the credibility attack and whether leave should be granted under section 192(2) of the Evidence Act. The court had to consider the purpose of the evidence, the potential impact on the fairness of the trial, and the relevance of the prior consistent statements in rebutting the implication of suggestion. The court also needed to determine if the proposed evidence would assist in addressing the specific attack on the witness's credibility without unfairly prejudicing the accused.

The court held that the prior consistent statements could be admitted to counter the specific attack on the witness's credibility, as they directly addressed the implication that the evidence was the result of suggestion. The court found that such evidence was relevant and necessary to ensure the fairness of the trial. The court granted leave under section 192(2) of the Evidence Act, allowing the accused to tender the prior consistent statements. The decision underscored the importance of maintaining the integrity of the trial process by enabling the accused to adequately rebut attacks on the credibility of their evidence.

The court's final orders included granting leave for the accused to tender the prior consistent statements to counter the credibility attack on the witness's evidence. This ruling ensured that the accused had the opportunity to present their case effectively and that the trial would proceed with the necessary safeguards to protect their rights.

Orders