Citation: Abdallah v R [2005] NSWCCA 365
Court: Court of Criminal Appeal, New South Wales
Date: 16 November 2005
Judge(s): Simpson J (at [1]), Johnson J (at [96]), Rothman J (at [97])
Background
The appellant was charged following a violent incident at the Revesby Workers' Club in the early hours of 26 October 2002. A fracas broke out when security staff escorted the appellant's brother and others from the club. During the disturbance, the appellant picked up a firearm that had fallen to the ground and fired three shots.
The second shot, fired through the inner sliding doors of the club's entry airlock into the foyer beyond, struck security guard Eddie Sua in the ankle. The third shot was fired outside as the appellant fled the scene. The entire sequence was captured on closed circuit television, with a time counter showing the three shots were fired over approximately 12 seconds.
The appellant pleaded guilty to two counts of firing a firearm in or near a public place. He contested the more serious charge of shooting at Sua with intent to do grievous bodily harm (GBH). The jury convicted him on the principal alternative of that count under section 33A(1) of the Crimes Act 1900. He then appealed against his conviction and sought leave to appeal against his sentences.
Legal Issues
- Whether the verdict of guilty on the charge of shooting at a person with intent to do GBH was unreasonable, having regard to expert ballistics evidence about the angle and trajectory of the shot
- Whether the trial judge's failure to give certain jury directions resulted in a miscarriage of justice
- The proper legal meaning of "shoot at" for the purposes of the relevant offence
- What constitutes the indispensable facts of the Crown case, and what obligations a trial judge has when summing up to the jury
- Whether the sentences imposed were appropriate, including consideration of the appellant's youth, contrition, pre-trial custody, and the reduced weight given to guilty pleas entered at trial
Decision
Conviction appeal: The Court dismissed the appeal against conviction. The central factual contest was whether the appellant had fired the second shot in Sua's direction with the requisite intent. Expert evidence suggested a direct line-of-sight shot at Sua from the appellant's position may have been difficult or impossible, and the defence argued this negated intent. The Court rejected that reasoning.
The Court held that even accepting the ballistics evidence at its highest, including a hypothesis that the bullet struck Sua only after a ricochet, this did not make the verdict unreasonable. A person who deliberately fires a gun at another ordinarily does so with the intention of inflicting GBH. The fact that the shooter may not have known a direct hit was unlikely, or may have been in a state of panic, did not negate the inference of intent open to the jury.
On the "shoot at" question, the Court confirmed that deliberately firing a gun in the direction of another person is sufficient to satisfy that element. The offence does not require that the shooter had the physical capacity to strike the target directly. The jury's verdict was open on the evidence, including the videotape and witness accounts.
Sentence appeal: Leave to appeal was granted but the sentences were confirmed in substance. The only correction made was to the commencement date. The sentencing judge had specified all sentences to commence on 25 March 2004, the date of verdict, but the appellant had been in pre-trial custody from 8 March 2004. The Court varied the commencement date to 8 March 2004 to properly account for that period.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentences granted
- Sentences confirmed, save that each sentence was specified to commence on 8 March 2004
- Earliest date of eligibility for release on parole fixed at 7 September 2009
Key Takeaways
- A verdict of guilty for shooting at a person with intent to do GBH is not rendered unreasonable merely because expert evidence suggests a direct hit on the target may have been physically difficult or impossible from the shooter's position.
- Where a person deliberately fires a gun in another person's direction, it is ordinarily open to a jury to infer the requisite intent to inflict GBH, regardless of the shooter's level of expertise or awareness of the shot's likely trajectory.
- The Court of Criminal Appeal confirmed that the impossibility of a direct hit does not negate intent where the only bullet wound suffered by the victim could only have come from the accused's gun.
- Pre-trial custody must be properly reflected in the commencement date of any sentence imposed; the Court corrected a sentencing error by backdating the commencement date to the first day of actual custody rather than the date of verdict.
- In dismissing the conviction appeal, the Court emphasised that expert evidence about angles and possibilities goes to the jury's assessment of the evidence, but does not displace the jury's role in drawing inferences about intent from all the circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33A(1), 34, 35, 93G(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Law Consolidation Act 1935 (SA), s 21(c)
Cases:
- M v The Queen [1994] HCA 63; 181 CLR 487
- Shepherd v The Queen [1990] HCA 56; 170 CLR 593
- Smith v The Queen [2001] HCA 50; 206 CLR 650
- The Queen v de Simoni [1981] HCA 31; 147 CLR 383
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v AEM [2002] NSWCCA 58
- R v Evans (1973) 5 SASR 183
- R v GDP (1991) 53 A Crim R 112
- R v Nichols (1991) 57 A Crim R 391
- R v WKR (1993) 32 NSWLR 447
- R v Gordon Benson Marshall (1987) 26 A Crim R 259
- R v Allam, NSWCCA, unreported, 13 April 1993