Citation: El-Badawi v R [2021] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 20 August 2021
Judges: Hoeben CJ at CL; Campbell J; Hamill J
Background
The applicant was convicted by a District Court jury in December 2018 of discharging a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act 1900 (NSW). He was sentenced to eight years' imprisonment with a non-parole period of five years. The jury acquitted him of the more serious alternative charge of shooting with intent to murder, and also acquitted his co-accused brother of all counts.
The shooting occurred on 18 January 2017 at Villawood. It was not disputed that the applicant shot the complainant, nor that he intended to do so. The core issue at trial was whether the applicant was acting in defence of his sister. The applicant argued the complainant was running toward his sister while armed, and that he shot in response to that threat.
The applicant sought leave to appeal on the single ground that the verdict was unreasonable and could not be supported by the evidence. He contended the jury, acting rationally, ought to have maintained a reasonable doubt about guilt given the evidence could not exclude the reasonable possibility that he was defending his sister and that his response was reasonable in the circumstances as he perceived them.
Legal Issues
- Whether there was a reasonable possibility the applicant believed his conduct was necessary to defend his sister, such that the defence of another could not be excluded.
- If that belief was established as reasonably possible, whether there was also a reasonable possibility that shooting the complainant was a reasonable response in the circumstances as the applicant perceived them.
- Whether the jury's verdict was unreasonable or could not be supported having regard to the whole of the evidence, applying the principles from M v The Queen, SKA v The Queen, and Pell v The Queen.
- Whether the mental element of the offence (intent to cause grievous bodily harm) was proved beyond reasonable doubt, given reliability and credibility issues with the witnesses.
Decision
The Court of Criminal Appeal, with Hoeben CJ at CL delivering the principal judgment, applied the well-established test for unreasonable verdict appeals: whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. The court acknowledged its obligation to conduct an independent assessment of the evidence, but also to give appropriate weight to the jury's advantage in observing witnesses and assessing credibility.
On the defence of another, the court found that the applicant's decision to bring a loaded pistol to the meeting with the complainant was a central factor. That circumstance excluded, as a reasonable possibility, any belief that shooting the complainant was necessary to defend his sister. Whatever the events immediately preceding the shooting, the applicant had arrived armed and prepared to use lethal force, which undermined the claim that his response arose organically from a perceived threat on the day.
The court conducted a detailed review of the extensive trial evidence, including prior incidents involving the complainant, the complainant's criminal history, and the conflicting accounts given by multiple witnesses. The court acknowledged that many witnesses presented credibility and reliability difficulties requiring careful assessment. However, the existence of those difficulties did not, of itself, make the verdict unreasonable.
Ultimately, the court was not persuaded that the jury, acting rationally, was compelled to have a reasonable doubt about the applicant's guilt. The Crown case, assessed as a whole, was capable of supporting the conviction. All three judges agreed that leave to appeal should be granted but that the appeal must be dismissed.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A conviction appeal on the ground of unreasonable verdict requires the appellate court to independently assess the whole of the evidence, but the test is not whether the appellate court would itself have convicted; it is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt.
- Where a defendant raises defence of another, both limbs of the defence must remain reasonably possible: that the defendant believed the conduct was necessary, and that the response was reasonable in the circumstances as perceived. Failure on either limb is sufficient to negate the defence.
- Arriving at a confrontation with a loaded, ready-to-use firearm was treated by the Court of Criminal Appeal as material circumstantial evidence capable of excluding the reasonable possibility that the defendant genuinely believed lethal force was necessary only at the moment of the shooting.
- Credibility and reliability problems with Crown witnesses do not automatically render a verdict unreasonable. The court must examine whether those problems, taken together with all the evidence, compelled a reasonable doubt rather than merely permitting one.
- The applicant's acquittal on the more serious charge of shooting with intent to murder, and the co-accused's acquittal on all counts, did not disturb the jury's capacity to return a rational guilty verdict on the s 33A(1)(a) alternative count.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 29, 33A(1)(a)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Cases
- Chidiac v R (1991) 171 CLR 432; [1991] HCA 4
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Dziduch (1990) 47 A Crim R 381
- R v Katarzynski [2002] NSWSC 613
- R v Nguyen (2010) 242 CLR 491; [2010] HCA 38
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- Sivaraja v R; Sivathas v R [2017] NSWCCA 236
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35