Jadallah v R - [2018] NZCA 536

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA337/2018
[2018] NZCA 536

BETWEEN	IBRAHIM JADALLAH Appellant
AND	THE QUEEN Respondent

Hearing:	12 November 2018
Court:	Asher, Lang and Moore JJ
Counsel:	A M M Ives for Appellant E J Hoskin for Respondent
Judgment:	30 November 2018 at 9 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

Mr Jadallah was found guilty by a jury in the High Court on a charge of aggravated robbery. That charge related to the theft of a Honda CRV motor vehicle. The jury acquitted Mr Jadallah on charges of aggravated robbery relating to the theft of a cellphone and wounding with intent to cause grievous bodily harm.
On 28 May 2018, Courtney J sentenced Mr Jadallah to six years and six months’ imprisonment.[1]
[1]R v Jadallah [2018] NZHC 1211.
Mr Jadallah appeals against conviction on the basis that the jury’s guilty verdict was unreasonable and inconsistent with the other two verdicts.[2] He appeals against sentence on the basis that errors in reasoning caused the Judge to select a starting point that was too high, and this has resulted in an end sentence that is manifestly excessive.

The respective cases at trial

[2]In her written submissions Ms Ives abandoned another ground of appeal challenging the circumstances in which the jury came to deliver a majority verdict on the charge on which they found Mr Jadallah guilty.

All three charges related to an incident that allegedly occurred on the evening of 18 April 2017. Both had previously been in a relationship with Ms Miller, and the Crown alleged that this resulted in hostility between Mr Jadallah and the complainant.
The animosity between the two men was said to have resulted in an earlier incident involving violence between them. The Crown contended that this resulted in Mr Jadallah seeking retribution against the complainant.
The Crown alleged that Mr Jadallah went with two associates to the complainant’s home late on the evening of 18 April 2017. One of Mr Jadallah’s associates had told the complainant Mr Jadallah would be coming to the address, ostensibly to enable Mr Jadallah and the complainant to resolve their differences.
The complainant invited the three men to enter the address and they socialised for approximately 30 minutes, during which Mr Jadallah smoked some methamphetamine. Mr Jadallah then went to the bathroom and returned holding a firearm. When Mr Jadallah pointed it at the complainant’s legs the complainant tried to strike the firearm with his foot. The Crown alleged Mr Jadallah then discharged the firearm twice, wounding the complainant in the knee. This led to the charge of wounding with intent to cause grievous bodily harm on which Mr Jadallah was acquitted.
At some stage during this incident one of Mr Jadallah’s associates also punched the complainant.
The complainant said that one of Mr Jadallah’s associates then drove away…

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 Jadallah v R

Details

AGLC: Jadallah v R [2018] NZCA 536
Case: [2018] NZCA 536
Decision Date: 30 November 2018 at 9 am

CaseChat Overview and Summary

Ibrahim Jadallah appeals against his conviction for aggravated robbery and his sentence. The appeal against conviction argues that the jury’s verdict was unreasonable and inconsistent with the other two verdicts. The appeal against sentence argues that errors in reasoning caused the judge to select a starting point that was too high, resulting in a manifestly excessive sentence. The court found that the jury’s verdict on the charge relating to the Honda CRV motor vehicle was logically explicable and could stand alongside the remaining verdicts. The jury had the benefit of the evidence of the complainant and corroborating evidence relating to the transfer of the two vehicles into the name of Ms Miller and Mr Jadallah’s involvement in the sale of the Dodge. The court was satisfied the jury had a sufficient evidential basis for its verdict. The appeal against conviction must therefore fail. The court found that the starting point of seven years’ imprisonment was appropriate, reflecting the aggravating features of the offending. The appeal against sentence is dismissed. The appeal against conviction and the appeal against sentence are both dismissed.

Orders