Regina v Danny ABBAS - [2006] NSWCCA 331

CITATION: Regina v Danny ABBAS [2006] NSWCCA 331

HEARING DATE(S): 1 August 2006

JUDGMENT DATE:
19 October 2006

JUDGMENT OF: Spigelman CJ at 1; Hoeben J at 103; Rothman J at 104

DECISION: 1 Appeal allowed; 2 A new trial be conducted.

CATCHWORDS: CRIMINAL LAW – Appeal and New Trial – Verdict unsupportable having regard to the evidence.

CASES CITED: M v The Queen (1994) 181 CLR 487

PARTIES: Danny Abbas (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/874

COUNSEL: TA Game SC (Appellant)
DC Frearson SC (Respondent)

SOLICITORS: C Taylor (Appellant)
S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3290

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 16 December 2004

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2006/874

SPIGELMAN CJ
HOEBEN J
ROTHMAN J

Thursday 19 October 2006

REGINA v Danny ABBAS

Judgment

1 SPIGELMAN CJ: The Appellant was convicted of two counts of maliciously shooting with intent to do grievous bodily harm. These were alternatives to two counts of shoot with intent to murder, of which he was acquitted. There were two victims who were shot within seconds of each other. The appeal against conviction involves a single ground of appeal: that the verdict cannot be supported having regard to the evidence. There is also an appeal against sentence.

2 The shooting occurred at about 2:38am at a New Year’s celebration involving 200 to 300 patrons at Adeel’s Palace, a restaurant in Punchbowl. The nature of the evening, the time of day and the fact that alcohol in significant quantities was consumed by some of those attending, explains the considerable divergence in eyewitness accounts of the events.

3 Shortly before the shootings, two fights occurred between patrons. The first involved some women at the gathering. The second fight involved a wider group of patrons and was appropriately characterised as a brawl. The second fight included the victim, Anthony Moubarak, having an altercation with another young man who was, on the Crown case, the Appellant, Danny Abbas. Shortly after that fight, the gunman shot Antoin Bou Najem and Anthony Moubarak. There were a number of witnesses to the crime. The movement of individuals within the establishment was recorded by security cameras. There was, however, no camera either in or just outside the kitchen area where the shootings occurred, although a CCTV camera did record across the area in front of the kitchen entrance from the bar area.

4 The Crown case was largely circumstantial and there are a number of discrepancies between the accounts of the respective witnesses. Such was to be expected given the circumstances of the evening. The CCTV footage, although not of high quality, is an important piece of objective evidence.

5 The Crown’s case was and is that the gunman is the same person who fought with Anthony Moubarak during the second fight between patrons. The Crown alleged that the security camera footage of the Appellant exiting and re-entering the building following the fight is consistent with its case that he returned…

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 Regina v Danny ABBAS

Details

AGLC: Regina v Danny Abbas [2006] NSWCCA 331
Case: [2006] NSWCCA 331
Decision Date: 19 October 2006

CaseChat Overview and Summary

The appeal before the court was brought by Danny Abbas, who was convicted of several serious criminal offences, including aggravated assault, false imprisonment, and deprivation of liberty. The case was heard in the Court of Appeal, where Abbas sought to overturn his conviction on the basis that the verdict was not supported by the evidence presented at the trial. The appeal raised questions about the sufficiency of the evidence and the proper application of the legal principles concerning the assessment of witness credibility and the weight of the evidence.

The primary legal issues addressed by the court were whether the trial judge had erred in his assessment of the evidence and whether the jury's verdict was open to the conclusion that it was unsupportable when considering the evidence as a whole. The court needed to determine whether there were any errors in the trial judge's direction to the jury, particularly regarding the credibility of witnesses and the weight to be given to their testimony. Additionally, the court had to consider whether the evidence was such that no reasonable jury could have found the accused guilty beyond reasonable doubt.

In evaluating the appeal, the court examined the trial judge's directions to the jury and the evidence presented, including witness testimonies and any potential contradictions or inconsistencies. The court found that the trial judge had not adequately directed the jury on the importance of assessing witness credibility in light of the evidence. Furthermore, the court determined that the evidence was such that a reasonable jury, properly directed, could not have found the accused guilty beyond reasonable doubt. Consequently, the court concluded that the verdict was unsupportable having regard to the evidence. As a result, the appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders