Citation: R v Abdallah (No. 6) [2014] NSWSC 293
Court: Supreme Court of New South Wales
Date: 10 March 2014
Judge: Campbell J
Background
The accused stood trial on two counts: the murder of one man by shooting, and the attempted murder of a second man who had been associated with the deceased. The Crown alleged that after shooting the deceased in a street in Sans Souci, the accused pursued the second man down a driveway and, upon reaching a Colorbond fence, leaned over it and fired a handgun at the fleeing man as he crossed a backyard.
The second count was brought under s 29 of the Crimes Act 1900 (NSW), which makes it an offence to shoot at any person with intent to commit murder, whether or not bodily injury results. The accused's own account was that by the time he fired over the fence, the second man had already escaped through a gate and the shot was fired at the ground as a warning, in self-defence.
At the close of evidence, senior counsel for the accused applied for a verdict by direction on the second count, arguing there was simply no evidence that the accused had shot at the second man in the sense of intending to hit him.
Legal Issues
- Whether, on all the evidence taken at its highest and with all inferences drawn in favour of the prosecution, there was legally sufficient evidence to support a verdict of guilty on the attempted murder count.
- Specifically, whether there was any evidence from which the jury could infer that the second man was still visible in the backyard when the accused fired, and that the gun was discharged with intent to kill him.
Decision
Campbell J stated the applicable test clearly: a verdict by direction is only warranted if there is no evidence at all, taking the Crown case at its highest and considering all available inferences favourable to the prosecution, capable of legally supporting a verdict of guilty. The relative strength of the evidence, or whether a guilty verdict would survive a conviction appeal, was irrelevant to that inquiry.
The Crown conceded its case on the second count was largely circumstantial. No single eyewitness placed the second man in the backyard at the precise moment the gun was fired. However, the evidence of several witnesses was capable of supporting the necessary inferences. One witness saw the accused leaning over the fence with his arm raised and a gun in his hand. Another witness was awoken by a voice yelling "You're f** dead" and observed a person in the yard apparently looking for an exit. A third witness heard the same aggressive phrase immediately followed by a loud bang. The accused himself accepted he had pursued the second man and fired over the fence.
Campbell J held that while there was no direct evidence the second man remained a visible target when the gun was fired, the jury was entitled to consider all the evidence as a continuum, including evidence relevant to the murder count. If the jury rejected the accused's self-defence account on the murder charge, that finding could form part of the circumstantial picture supporting the inference that the accused fired at the second man with murderous intent. Taken together, those circumstances constituted legally sufficient evidence to support a verdict of guilty on the second count.
The application for a verdict by direction was refused.
Orders Made
No orders were made in this decision.
Key Takeaways
- The test for a verdict by direction requires the trial judge to take all evidence at its highest and consider every available inference in favour of the prosecution; the judge does not weigh the evidence or assess its overall persuasiveness.
- A circumstantial Crown case may be legally sufficient even where no single witness provides direct evidence of every element, provided the cumulative evidence supports the necessary inferences.
- Under s 29 of the Crimes Act 1900 (NSW), the offence of shooting at a person with intent to murder is established whether or not bodily injury results; the critical element is the intent at the time of firing.
- In a trial involving multiple counts arising from a connected sequence of events, the jury may consider the whole of the evidence when deliberating on each individual count, treating the events as a continuum rather than in artificial isolation.
- Sufficient evidence existed in this case to leave the attempted murder count to the jury, notwithstanding the absence of any eyewitness who could directly confirm the complainant was in the yard at the moment of the shot.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 29 (shooting at a person with intent to commit murder)
Cases:
No cases were formally cited in the judgment.