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Court of Criminal Appeal 9 March 2016

Abdallah v R

[2016] NSWCCA 34

Homicide
CRIMINAL LAW CONVICTION APPEAL MURDER CONVICTION APPEAL MURDER WHERE ISSUE OF SELF

Citation: Abdallah v R [2016] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 9 March 2016
Judges: Meagher JA; R A Hulme J; Bellew J

Background

The appellant was convicted of murder following a fatal shooting in the Sydney suburb of Sans Souci on 4 January 2012. He fired six shots at the deceased, a man he had known for several years, during a street confrontation outside the deceased's apartment building. Three shots were fired at or close to point-blank range into the deceased's head or neck, and two were fired into his back.

The appellant did not deny the shooting. He claimed he acted in self-defence, giving evidence that the deceased had previously threatened him, that he had reason to believe the deceased intended to shoot him, and that during the confrontation he feared for his life. There was a significant dispute at trial about the timing and sequence of the six shots, including whether two separate shooting incidents occurred. The jury convicted the appellant of murder and acquitted him of a separate charge of shooting another man with intent to murder.

The appellant was sentenced to 26 years and 8 months' imprisonment with a non-parole period of 20 years. He appealed against both conviction and sentence.

  • Whether the trial judge erred in permitting the Crown to adduce expert ballistics evidence that went beyond what the ballistics experts had agreed upon during a pre-trial conference, in circumstances where no formal direction had been made under Pt 75, Div 1, r 3K of the Supreme Court Rules 1970 (NSW)
  • Whether the Crown Prosecutor's closing address misstated the law of self-defence by referring to "reasonable grounds" for belief as to the necessity of the appellant's actions, rather than the correct test of genuine (though not necessarily reasonable) belief
  • Whether the use of the phrase "genuine belief" in the trial judge's directions compounded the error by implying a reasonableness requirement
  • Whether the Crown's closing address advanced a materially different account of the shooting sequence from that presented in its opening and conduct of the case, and whether this caused a miscarriage of justice
  • Whether the verdict was unreasonable or unsafe
  • Whether the sentencing judge erred by finding an intention to kill on a basis not put to the jury by the Crown, by finding the offence was aggravated by premeditation or planning, by failing to account for provocation, and whether the sentence was manifestly excessive

Decision

Expert evidence ground: The Court examined whether the agreement reached between the ballistics experts during a pre-trial conference was binding on the Crown in circumstances where no formal direction had been made under r 3K(1) of the Supreme Court Rules 1970. The Court held that even if the relevant rules applied, the trial judge did not err. The evidence adduced by the Crown beyond the experts' agreement was properly admitted, and no miscarriage of justice resulted from its admission.

Self-defence directions ground: The Crown Prosecutor's closing address incorrectly described the test for self-defence by referring to "reasonable grounds" for belief, when the correct test under s 418 of the Crimes Act 1900 (NSW) requires only that the accused genuinely believed the conduct was necessary, regardless of whether that belief was objectively reasonable. The Crown conceded the error. However, no objection had been raised at trial. The Court found the trial judge's directions adequately corrected any misapprehension and that the error did not cause the trial to miscarry. The use of the phrase "genuine belief" in the directions did not itself introduce a reasonableness requirement.

Shifting Crown case ground: The appellant argued that the Crown's closing address advanced a materially different account of the shooting sequence from that in its opening, and that this shift was unfair and contributed to an unreasonable verdict. The Court rejected this ground. It was open to the jury, on the whole of the evidence, to reject the self-defence claim and to be satisfied beyond reasonable doubt of the appellant's guilt. The verdict was neither unreasonable nor unsafe.

Sentence appeal: The Court rejected each proposed ground against sentence. The sentencing judge's finding as to intention to kill was supported by the evidence. Any element of planning or premeditation was reasonably open on the facts. The Court doubted that provocation operated as a mitigating factor at all in the circumstances, observing that the appellant could hardly have been surprised by hostility from the deceased given their recent history. The sentence was well within the available range for a serious murder and was not manifestly excessive.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted, but the appeal dismissed.

Key Takeaways

  • Under s 418 of the Crimes Act 1900 (NSW), self-defence requires only that the accused genuinely believed their conduct was necessary, not that the belief was objectively reasonable. A Crown address that imports a reasonableness requirement misstates the law, though such an error will not necessarily cause a trial to miscarry if adequate judicial directions are given.
  • Where no objection is raised to a misdirection at trial, the Court of Criminal Appeal will consider whether the error actually caused a miscarriage of justice rather than treating the misdirection as automatically fatal to the conviction.
  • Pre-trial expert conferences under the Supreme Court Rules 1970 (NSW) do not necessarily preclude a party from adducing evidence beyond the scope of matters agreed, particularly where no formal direction has been made under r 3K(1).
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that provocation short of a formal partial defence may carry only minimal, if any, mitigating weight in sentencing for murder, particularly where the offender had reason to anticipate hostility.
  • A sentencing court may make findings as to an offender's intention and level of planning on the basis of the trial evidence as a whole, even where the Crown did not specifically rely on those matters before the jury.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 23, 29, 418, 419, 421
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 55, 137, 191
- Supreme Court Rules 1970 (NSW), Pt 75, Div 1, rr 3J, 3K
- Uniform Civil Procedure Rules 2005 (NSW), rr 31.21, 31.22

Cases:
- Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645
- M v The Queen [1994] HCA 63; 181 CLR 487
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- Haoui v The Queen [2008] NSWCCA 209; 188 A Crim R 331
- Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544
- Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460
- Jubraeel v R [2015] NSWCCA 131
- R v Oblach [2005] NSWCCA 440; 65 NSWLR 75
- R v Katarzynski [2002] NSWSC 613
- R v Milne (No 1) [2010] NSWSC 932; 260 FLR 166
- Robinson v The Queen [2006] NSWCCA 192; 162 A Crim R 88
- R v Conlon (1993) 69 A Crim R 92
- R v Acton [2001] QCA 155