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Court of Criminal Appeal 16 June 2017

Fadel v R

[2017] NSWCCA 134

Assault & violence
CRIMINAL LAW APPEAL EVIDENCE WITNESSES COURT IDENTIFICATION WHETHER IN

Citation: Fadel v R [2017] NSWCCA 134
Court: Court of Criminal Appeal, New South Wales
Date: 16 June 2017
Judge(s): Simpson JA (with Button J and N Adams J agreeing)

Background

The appellant was convicted in the District Court after a 12-day jury trial of intimidating a person with intent to cause physical or mental harm, and intentionally causing grievous bodily harm. The offences arose from a neighbourhood dispute in Bexley North on 28 August 2012, which escalated from a verbal argument into a physical confrontation between the appellant's family and their neighbours.

During the incident, the appellant was alleged to have made threatening gestures and statements in Arabic toward one member of the neighbouring family, and to have kicked another member of that family in the jaw while wearing steel-capped boots. The victim suffered multiple jaw fractures and the displacement of several teeth. The appellant was arrested at the scene; both his brother and a female bystander claimed to have been the perpetrator.

The appellant was sentenced to a total of 6 years and 10 months imprisonment, with a non-parole period of 4 years and 4 months. He appealed against both conviction and sentence.

  • Whether an in-court identification by a witness, made in circumstances where a prior identification had occurred, required the trial judge to discharge the jury.
  • Whether the trial judge's direction to disregard the in-court identification was adequate to cure any resulting prejudice.
  • Whether the trial judge erred in directing the jury to treat the absence of DNA evidence on the appellant's boots as neutral, rather than as supporting an exculpatory inference.
  • Whether the conviction was unreasonable or unsupported by the evidence, given discrepancies in identification evidence and evidence that another person had admitted to the assault.
  • Whether the sentencing judge erred in assessing the objective seriousness of the grievous bodily harm offence, and whether the sentence was manifestly excessive.

Decision

In-court identification: During his evidence, a witness gestured toward the appellant in the dock when asked to identify the perpetrator. The trial judge directed the jury to disregard this gesture rather than discharging the jury. The Court of Criminal Appeal held that the trial judge was not in error. The direction given was adequate in the circumstances, and the case was distinguished from situations where discharge had been found necessary.

DNA evidence direction: The appellant's boots were forensically tested and no biological material was found. Defence counsel at trial invited the jury to draw an exculpatory inference from this absence. The trial judge directed the jury to treat the absence as neutral. The Court of Criminal Appeal found no error in this approach: the absence of DNA did not positively support either version of events, and the neutral direction was appropriate.

Unreasonable verdict: The appellant pointed to several evidentiary weaknesses, including discrepancies in descriptions of clothing and tattoos, and the fact that two other people had claimed responsibility for the assault. Despite these matters, the Court found the verdict was not unreasonable. Two eyewitnesses, both well acquainted with the appellant and his brothers, gave evidence identifying him as the assailant. One of those witnesses observed both the assault and the subsequent arrest, and confirmed the person arrested was the person who had struck the victim. All three judges independently assessed the trial evidence and were satisfied it was open to the jury to convict.

Sentence: The sentencing judge's characterisation of the objective seriousness of the offence was upheld. The head sentence of 6 years and 8 months and the non-parole period of 4 years and 2 months both fell appropriately within the range indicated by sentencing statistics. Leave to appeal against sentence was granted, but the appeal was dismissed.

Orders Made

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

Key Takeaways

  • No error was established where a trial judge directed a jury to disregard an inadvertent in-court identification rather than discharging the jury entirely, provided the direction adequately addressed the risk of prejudice.
  • The absence of forensic evidence on a seized item does not automatically support an exculpatory inference. A direction treating that absence as neutral is not, of itself, a misdirection.
  • A conviction will not be set aside as unreasonable merely because discrepancies existed in the identification evidence, where multiple eyewitnesses with prior familiarity with the accused gave positive identification evidence at trial.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a sentence falling appropriately within the statistical range for the offence, and reflecting accumulation for a concurrent matter, is not manifestly excessive.
  • Where two of three appellate judges independently examine the trial evidence and each reaches the same conclusion, this reinforces that the jury's verdict was open on the evidence, consistent with the approach in M v The Queen (1994) 181 CLR 487 and SKA v The Queen (2011) 243 CLR 400.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 1A
- Evidence Act 1995 (NSW), ss 55, 56, 116, 137, 165

Cases:
- Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17
- Aslett v R [2009] NSWCCA 188
- Davies v The King; Cody v The King (1937) 57 CLR 170; [1937] HCA 27
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Domican v R (No 3) (1990) 46 A Crim R 428
- Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
- Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- Raumakita v R (2011) 210 A Crim R 326; [2011] NSWCCA 126
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Vuni v R [2006] NSWCCA 171