Zaphir v R

Case [2009] NSWCCA 124

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Alexander ZAPHIR v R [2009] NSWCCA 124

FILE NUMBER(S):
2008/0571

HEARING DATE(S):
19 March 2009

JUDGMENT DATE:
29 April 2009

PARTIES:
Alexander ZAPHIR (Appellant)
REGINA (Respondent)

JUDGMENT OF:
McClellan CJatCL Simpson J Howie J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/11/0837

LOWER COURT JUDICIAL OFFICER:
Nicholson DCJ QC

LOWER COURT DATE OF DECISION:
18 April 2008

COUNSEL:
Self represented / Dale Higgins (Appellant)
P A Leask (Respondent)

SOLICITORS:
Self represented / Dale Higgins (Appellant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

CATCHWORDS:
CRIMINAL LAW
particular offences
offences against the person
assault with intent to rob in company
whether conviction unreasonable

LEGISLATION CITED:
Crimes Act 1900
Evidence Act 1995

CATEGORY:
Principal judgment

CASES CITED:
R v Bolder; R v Zaphir [2008] NSWCCA 222
M v The Queen [1994] HCA 63; 181 CLR 487
Jones v The Queen [1997] HCA 12; 191 CLR 439
MFA v The Queen [2002] HCA 53; 213 CLR 606
Markuleski v R [2001] NSWCCA 290; 52 NSWLR 82

TEXTS CITED:

DECISION:
Appeal against conviction dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/0571

McCLELLAN CJ at CL
SIMPSON J
HOWIE J

Wednesday 29 April 2009

Alexander ZAPHIR v R

Judgment

  1. McCLELLAN CJ at CL:  I agree with Simpson J.

  2. SIMPSON J: On 14 January 2008 the appellant was arraigned in the District Court on an indictment alleging an offence of assault with intent to rob whilst in company, an offence against s 97(1) of the Crimes Act 1900. As an alternative, the indictment alleged an offence against s 59(2) of the Crimes Act, of assault occasioning actual bodily harm whilst in company.

  3. Also arraigned, on the same indictment, was Dean Bolder.  Each accused entered a plea of not guilty to each count, and a jury was empanelled.  After a trial that ran over 9 days, the jury returned verdicts of guilty against each accused on the primary count. 

  4. Nicholson DCJ proceeded to sentence each offender on 18 April 2008.  He sentenced each to a term of imprisonment made up of a non-parole period of 15 months and a balance of term of 9 months, to be served by way of periodic detention.

  5. The Crown successfully appealed against the leniency of the sentences.  Each accused was re-sentenced by this Court, to a term of full time imprisonment made up of a non-parole period of 2 ½ years and a balance of term of 2 years (R v Bolder;  R v Zaphir [2008] NSWCCA 222, 25 September 2008).

  6. The appellant now appeals against his conviction.  The sole ground of appeal advanced is that the verdict of guilty is unreasonable and cannot be sustained having regard to the evidence.

  7. The appellant was not legally represented in this Court.  He had the able assistance of a friend, not a lawyer, who presented comprehensive and helpful written submissions.

  8. The evidence discloses that this was a third (or possibly even a fourth) trial.  It…

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Details
AGLC
Zaphir v R [2009] NSWCCA 124
Case
[2009] NSWCCA 124
Decision Date

CaseChat Overview and Summary

The case of Zaphir v R involved the appellant, Zaphir, who was charged with assault with intent to rob in company. The incident took place in February 2006, when Mr. Ng was attacked and robbed while carrying a wallet containing $2,000. The case was heard in a court of law where the appellant contested the conviction, arguing it was unreasonable. The legal issues before the court were whether the evidence presented was sufficient to support the conviction and whether the conviction was reasonable in the circumstances.

The court examined the evidence provided by Mr. Ng, who testified that he was attacked by two men, one bald and the other with hair, who assaulted him, robbed him, and threw him down a flight of stairs. The court considered whether the testimony was credible and whether the attack was premeditated. The appellant argued that the attack was not premeditated and that the assault and robbery were not in company, as required by the charge. The court assessed the credibility of the witnesses and the weight of the evidence, particularly the testimony of Mr. Ng, who gave his evidence through an interpreter. The court found that the evidence was sufficient to establish that the attack was premeditated and that the appellant and his co-accused were acting in company.

The court concluded that the evidence was sufficient to support the conviction and that the conviction was reasonable. The court found that the appellant and his co-accused had assaulted Mr. Ng with the intent to rob him and that the attack was premeditated. The court rejected the appellant's argument that the attack was not premeditated and that the assault and robbery were not in company. The court found that the evidence established that the appellant and his co-accused had acted together in the assault and robbery.

The court upheld the conviction of the appellant on the charge of assault with intent to rob in company. The appellant's appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is appropriate now to outline the evidence given by each of these witnesses. I propose to do so in some detail.The evidence (i) Mr Bak Shiu NgMr Ng gave his evidence through an interpreter. I will say more about this circumstance below. Mr Ng said that on 25 February 2006 he left his home at Kingsgrove to go shopping with his wife in Chinatown. They arrived at about 1.00pm, and he left his wife there and travelled by bus to Pyrmont to visit his sister. He was carrying two bags of vegetables that he delivered to her. He said that he had in his pocket a wallet containing $2,000. He said that as he walked up the stairs to his sister’s apartment, he saw:“ … two nice gentlemen who’s polite enough to retreat further up the stairs so I can pass through.”One of the men was bald, one had hair. (As became clear as the evidence unfolded, the bald man was Bolder, the hirsute man was the appellant.) Mr Ng said on at least three occasions that the men “retreated” to the top of the stairs to let him pass. He visited his sister, stayed with her about 20 minutes, left with her the bags of vegetables, and left the unit empty handed. His wallet containing the money was in the rear pocket of his trousers. He saw, on the opposite side of the road, a car “parking” [sic - ? parked], and a man leaning on it. The man made a motion with his hand. (Mr Ng interpreted this as a signal to somebody else.) Mr Ng walked down part of the flight of stairs and:“ … then suddenly a figure just flash out.” The man who “flashed out” from the side was a [sic - ? the] bald man. This man hit him (Mr Ng) “real hard”. The punch was followed by “a shower of punches” all over his face, causing fractures to his nose. After many punches he began to respond and used one of his hands to try to ward off the blows. As he did so, the man with the hair joined the fight. He was “even more vicious” (than the bald man). Mr Ng said that “the other man”:“ … used his both hands to embrace or grab me from the back so that both my hands cannot be used to ward off the attack from the bald guy and after that both of them – both of them hold me upside down and then just chuck me down the flight of stairs and I landed on my head and my head was heavily bleeding as a result of that.”(It is not clear to me which of the two accused was intended to be referred to as “the other man”.) He said that as he lay on the landing the men began to search his body, the man with the hair saying “money, money, money”. They dragged him along the floor, kicking him. The bald man kicked him in the head, then swung him around; the man with hair put his hands inside Mr Ng’s pocket, and while doing so said the words “money, money, money”. (It is not clear whether Mr Ng intended, by this, to assert that the appellant used those three words in succession once only, or repeated them.) The bald man continued beating him and kicking him. He said that his head was on the ground, he kept yelling, and the kicking continued.

Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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