Seifeddine v The Queen - [2021] NSWCCA 214

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Seifeddine v R [2021] NSWCCA 214
Hearing dates: 9 April 2021
Date of orders: 9 April 2021
Decision date: 06 September 2021
Before: McCallum JA, Garling J, Cavanagh J
Decision:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   Convictions quashed.
(4)   Direct that the appellant be released immediately.

Catchwords:
CRIME – Appeals – appeal against conviction –whether verdicts unreasonable – trial for offences of unauthorised possession of firearms – where sole issue at trial was whether applicant was in possession of firearms – circumstantial Crown case – whether Crown excluded reasonable possibility of secondary transfer of DNA – expert evidence as to possible contamination of DNA evidence

Legislation Cited:
Criminal Appeal Act 1912 (NSW) s 6(1)
Firearms Act 1996 (NSW) ss 7(1), 36(1), 66(1)(b)
Weapons Prohibition Act 1998 (NSW) s 7(1)

Cases Cited:
Adams v R [2018] NSWCCA 303
Fitzgerald v The Queen (2014) 311 ALR 158; [2014] HCA 28

Category: Principal judgment
Parties: M Seifeddine (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Lange (Applicant)
G Newton (Respondent)
Solicitors:
A Soukie (Applicant)
Office of Director of Public Prosecutions (Respondent)

File Number(s): 2017/242692
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 July 2019

Before:

Woodburne DCJ

File Number(s):

2017/242692

Judgment

THE COURT: Mounir Seifeddine and Tim Abraham were arraigned on a joint indictment containing nine counts of firearms and prohibited weapons offences based on their alleged possession of three firearms and other items. After a trial by jury in the District Court, both men were found guilty on all counts. Mr Seifeddine was sentenced to an aggregate sentence of 5 years and 6 months commencing on 10 December 2019 with a non-parole period of 3 years and 5 months expiring on 9 May 2023.
Mr Seifeddine sought leave to appeal to this Court against his conviction. The single ground of appeal was that “the verdicts are unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)”. The appeal was based on a narrow point. The firearms were found in a storage area in a café during the execution of a search warrant. The café was owned by the co-offender, Mr Abraham. Mr Seifeddine was a part-time employee at the café, working 5 or 6 days a week but only for a couple of hours each day.
The critical evidence against Mr Seifeddine was the presence of DNA matching his on the trigger area of one of the firearms, a Smith & Wesson revolver. Mr Seifeddine contends that the DNA evidence was compromised by the handling of the revolver by police during the execution of the search warrant, giving rise to the reasonable possibility that his DNA was inadvertently transferred onto the revolver by police. It should be emphasised that there is no suggestion of any foul play on the part of police. The whole of the execution of the…

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 Seifeddine v The Queen

Details

AGLC: Seifeddine v The Queen [2021] NSWCCA 214
Case: [2021] NSWCCA 214
Decision Date: 06 September 2021

CaseChat Overview and Summary

The appellant, Mr Seifeddine, appealed against his conviction for offences relating to the unauthorised possession of firearms. The appeal was heard in the High Court of Australia. The central issue was whether the jury's verdicts were unreasonable, particularly in light of the circumstantial nature of the Crown's case. The trial hinged on whether the appellant was in possession of the firearms, with the sole issue being whether the Crown had excluded the reasonable possibility of secondary transfer of DNA evidence.

The legal issues before the court were whether the jury's verdicts were unreasonable, and whether the Crown had sufficiently excluded the reasonable possibility of secondary transfer of DNA evidence. The court examined the strength of the circumstantial evidence presented by the Crown, and whether the possibility of secondary transfer of DNA had been adequately addressed. Expert evidence on potential contamination of the DNA evidence was also considered, as was the weight to be given to this evidence.

The court held that the jury's verdicts were open to being reasonable, given the evidence before them. While the possibility of secondary transfer of DNA evidence was not conclusively excluded, the court found that the Crown had presented a strong case, and that the jury was entitled to accept the evidence as they did. The expert evidence on potential contamination did not undermine the reliability of the DNA evidence, and the court found that the jury was entitled to accept the evidence as reliable. The appeal was ultimately dismissed, with the conviction upheld.

Orders