Sinai v The King - [2023] NSWCCA 194

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sinai v R [2023] NSWCCA 194
Hearing dates: 22 March 2023
Date of orders: 9 August 2023
Decision date: 09 August 2023
Before: Beech-Jones CJ at CL at [1]
Walton J at [73]
Price J at [74]
Decision:
(1) The applicant be granted leave to appeal against his conviction.
(2) The appeal be dismissed.

Catchwords:
CRIMES — appeals — appeal against conviction — unreasonable verdict — murder — joint criminal enterprise — shooter approached café, shot deceased and escaped to a location where Nissan “Elgrand” van was parked and drove him away from scene — prior to shooting van drove past café and parked several times at same nearby location in East Terrace, Bankstown — applicant’s wife drove van and sister-in-law was a passenger — whether it was open to jury to be satisfied beyond reasonable doubt of applicant’s guilt — evidence overwhelmingly demonstrates shooter received advance notice of deceased’s location and made prior arrangements to escape — shooter’s escape route after shooting led to exact location on East Terrace where van was parked was deliberate — coincidence in timing between applicant’s call to wife and shooter’s arrival at van compelling — inference applicant was in the van unavoidable — no significant possibility innocent person has been convicted — leave to appeal granted — appeal dismissed

Legislation Cited:
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Keleklio; R v Sinai [2022] NSWSC 62
R v Sinai (No 4) [2021] NSWSC 779

Category: Principal judgment
Parties: Abraham Sinai (Applicant)
Rex (Respondent)
Representation:
Counsel:
Mr T F Woods (Applicant)
Ms M Millward (Respondent)
Solicitors:
MacDougall & Hydes Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/169513
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2022] NSWSC 62

Date of Decision:

25 February 2022

Before:

R A Hulme J

File Number(s):

2019/169513

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 23 January 2018, at around 3:35pm, the deceased Ho Ledinh was sitting at the front of the “Happy Cup” café in City Plaza, Bankstown when Arthur Keleklio shot and killed him at close range with a pistol. On 28 June 2021, following a trial a jury found the applicant, Abraham Sinai, guilty of the murder of Mr Ledinh contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). On 25 January 2022, the applicant was sentenced to 30 years imprisonment with a non-parole period of 22 years and 6 months.

The Crown case against the applicant was circumstantial. The evidence adduced by…

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 Sinai v The King

Details

AGLC: Sinai v The King [2023] NSWCCA 194
Case: [2023] NSWCCA 194
Decision Date: 09 August 2023

CaseChat Overview and Summary

In the matter of Sinai v The King, the appellant, Sinai, was convicted of murder as part of a joint criminal enterprise and appealed against the conviction, arguing that the verdict was unreasonable. The case was heard in the High Court of Australia, which was required to determine whether the jury was correct in finding the appellant guilty beyond reasonable doubt. The key legal issues revolved around whether the evidence was sufficient to support the conviction, specifically focusing on the coincidence of events that pointed towards the appellant’s involvement in the crime.

The court examined the evidence presented, including the fact that the shooter had approached the café, shot the deceased, and then escaped to a location where a Nissan "Elgrand" van was parked. The van subsequently drove the shooter away from the scene. Prior to the shooting, the van had driven past the café and parked several times at the same nearby location on East Terrace, Bankstown. The appellant's wife drove the van, and his sister-in-law was a passenger. The court needed to assess whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

The High Court found that the evidence overwhelmingly demonstrated that the shooter received advance notice of the deceased's location and made prior arrangements to escape. The escape route taken by the shooter after the shooting led to the exact location on East Terrace where the van was parked, which was deliberate. The timing between the appellant’s call to his wife and the shooter’s arrival at the van was compelling, leading to an unavoidable inference that the appellant was in the van. The court concluded that there was no significant possibility that an innocent person had been convicted. Consequently, the leave to appeal was granted, but the appeal was dismissed.

Orders