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Court of Criminal Appeal 11 September 2015

Shamoun v R

[2015] NSWCCA 246

Assault & violenceHomicide
CONVICTION APPEAL NO ERROR DISCLOSED GROUNDS NOT MADE OUT APPEAL DISMISSED.

Citation: Shamoun v R [2015] NSWCCA 246
Court: New South Wales Court of Criminal Appeal
Date: 11 September 2015
Judge(s): Hoeben CJ at CL, Hall J, McCallum J

Background

The applicant, an Iraqi-born man who had migrated to Australia as a refugee, was tried jointly with a co-accused over the murder of a Castle Hill businessman in June 2007. The Crown alleged the applicant was recruited through intermediaries to harm the deceased, a former employee of the co-accused who had left in acrimonious circumstances and set up a competing business. The applicant was said to have entered the deceased's home before 4am, stabbing the deceased fatally and wounding the deceased's wife as she fled.

After a 36-day trial before Bellew J and a jury, the applicant was convicted of murder and malicious wounding. The co-accused, tried on charges of procuring and being an accessory to the murder, was acquitted after a second trial when the jury in the first trial could not agree on his charges.

The applicant sought leave to appeal against both his conviction and his sentence of 27 years imprisonment for murder (comprising a 20-year non-parole period) together with a concurrent sentence for malicious wounding.

  • Whether the jury's verdict of guilty on both counts was unreasonable and unsupported by the evidence, particularly given concerns about the reliability of the Crown's key witness.
  • Whether the trial judge's direction on circumstantial evidence was misleading, specifically the statement that such evidence is "not necessarily less reliable than direct evidence."
  • Whether the trial judge's directions adequately explained to the jury how to treat the evidence of the co-accused and witnesses called in support of his case.
  • Whether the applicant's medical conditions and cognitive impairment were given sufficient weight in sentencing.
  • Whether the sentencing judge should have found special circumstances justifying a different ratio between the non-parole period and additional term.
  • Whether the overall sentence was manifestly excessive.

Decision

Unreasonable verdict. The Court applied the well-established principle that an appellate court must make its own assessment of the sufficiency and quality of the evidence, while recognising that questions of witness credibility are essentially matters for the jury. The Crown's key witness, known by the pseudonym Saad, gave evidence that he drove the applicant to the deceased's street and waited while the applicant entered the premises. The Court acknowledged unsatisfactory aspects of Saad's evidence but found that his account on the critical question of the applicant's presence that night had sufficient internal coherence. Telephone intercept evidence, recorded at a time when Saad had no apparent motive to fabricate, pointed strongly to the applicant's involvement. Speed camera photographs captured Saad's vehicle in the vicinity at the relevant time with two occupants, consistent with Saad's account. The Court was satisfied it remained open to the jury, properly instructed, to find the applicant guilty beyond reasonable doubt.

Directions on circumstantial evidence. The applicant contended that describing circumstantial evidence as "not necessarily less reliable" than direct evidence inappropriately elevated its weight in the jury's mind. The Court rejected this ground, finding that the direction, read in context, did not mislead the jury or give the circumstantial evidence disproportionate weight. No error was established.

Directions on co-accused's evidence. The applicant argued the trial judge failed to direct the jury clearly that the co-accused's evidence could not be used against him. The Court examined the summing-up as a whole and found the directions were adequate. No appellable error was disclosed.

Sentence appeal. The Court rejected all three sentence grounds. It found the sentencing judge had properly taken into account the applicant's medical conditions and cognitive impairment, noting the principles from Bugmy v R [2013] HCA 37 regarding the relevance of disadvantage to sentencing. No special circumstances were established that would warrant adjusting the ratio of the non-parole period to the additional term. The sentence was not manifestly excessive having regard to the objective gravity of a premeditated killing in the home of the victim.

Orders Made

  • Leave to appeal against conviction granted; conviction appeal dismissed.
  • Leave to appeal against sentence granted; sentence appeal dismissed.

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that assessing witness credibility remains primarily a jury function, and appellate intervention requires more than dissatisfaction with the quality of the evidence on which the jury relied.
  • A direction that circumstantial evidence is "not necessarily less reliable than direct evidence" does not, without more, constitute a misdirection; the summing-up must be read as a whole to determine whether a jury was misled.
  • Where a trial judge directs the jury to consider the case against each accused separately, the adequacy of those directions is assessed in context rather than by reference to whether any particular formula was used.
  • Telephone intercept recordings captured at a time when a witness had no apparent motive to fabricate can carry significant probative weight, even where other aspects of that witness's evidence are unsatisfactory.
  • Under established sentencing principles, a sentencing court's obligation to consider a prisoner's disadvantaged background and cognitive impairment does not automatically generate a finding of special circumstances or reduce an otherwise appropriate sentence for serious offending.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), ss 128, 165

Cases
- Bugmy v R [2013] HCA 37; 249 CLR 571
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v Hillier [2007] HCA 13; 228 CLR 618
- MacKenzie v R [1996] HCA 35; 190 CLR 323
- Markarian v R [2005] HCA 25; 228 CLR 357
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Power v R [1974] HCA 26; 131 CLR 623
- Hawi v R [2014] NSWCCA 83
- Mansaray v R [2015] NSWCCA 40
- R v MD [2015] NSWCCA 37
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Caristo v R [2011] NSWCCA 7
- Collier v R [2012] NSWCCA 213
- R v Fadi Shamoun [2012] NSWSC 716