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Court of Criminal Appeal 15 February 2023

Bargashoun v R

[2023] NSWCCA 17

HomicideFirearms & weapons

Citation: Bargashoun v R [2023] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 15 February 2023
Judges: Adamson JA (with N Adams J and Weinstein J agreeing)

Background

The applicant and a co-offender attended a hotel in November 2012 to rob the victim of the hotel's takings. The applicant, who knew the victim would be armed, carried a .22 calibre handgun. When the victim emerged from the hotel, the applicant shot him twice in the legs. When that did not cause the victim to surrender the money, the applicant fired at least three more shots at close range into the victim's torso, striking his upper right chest, abdomen, and right hip.

The applicant pleaded guilty to discharging a firearm with intent to cause grievous bodily harm (count 2) and to robbery with infliction of grievous bodily harm (count 3). He stood trial on the more serious count of shooting with intent to murder (count 1). A jury convicted him by a majority of 11 on count 1 in May 2015, and he was sentenced to an aggregate term of 20 years' imprisonment with a non-parole period of 15 years.

The applicant filed a notice of appeal in June 2022, well outside the applicable time limit. He sought an extension of time and leave to appeal on three grounds, two of which were added only a week before the hearing of the appeal in January 2023.

  • Whether the murder conviction was unreasonable because a jury could not be satisfied beyond reasonable doubt that the applicant intended to kill the victim
  • Whether the trial judge erred in directing the jury that the Crown was not required to prove individual facts beyond reasonable doubt (a direction sometimes called a "Shepherd direction" issue)
  • Whether the trial judge erred by failing to give a specific unanimity direction regarding the different shots fired

Decision

On the unreasonable verdict ground, the Court found that it was open to the jury to infer that the applicant formed an intention to kill after firing the initial two shots at the victim's lower body. The subsequent shots were fired at very close range directly into the torso, and that manner of firing was sufficient to support the inference of murderous intent. The Court held it was unnecessary to resolve two subsidiary factual disputes: whether two marks near the victim's chest were gunshot wounds or surgical incisions, and whether the last two shots were fired after the victim had already handed over the money.

On the Shepherd direction ground, the Court held that the trial judge's directions about standard of proof were not in error. The relevant legal principle (from Shepherd v The Queen) requires jurors to be satisfied beyond reasonable doubt of any fact that is indispensable to a verdict of guilty. Here, however, the nature of the shots to the torso was not a matter requiring that kind of intermediate direction. No Shepherd direction was required on these facts.

On the unanimity ground, the Court held that no specific unanimity direction was required. By the time the last shot was fired into the victim's torso at close range, the jury must have been unanimous that the requisite intention to murder had been established. The absence of such a direction was therefore no error.

The Court granted the extension of time and leave to appeal despite the considerable delay and the absence of any merit in the grounds, noting that doing so would bring the matter to finality. However, the Court observed that applications of this nature carry real costs, including emotional burdens on applicants and potential distress to victims, and should only be pursued where there is a genuine prospect of advancing the applicant's interests.

Orders Made

  • Time for filing the notice of appeal extended to 23 June 2022
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An inference of intent to murder can be drawn from the manner in which shots are fired, including their location on the body and the range at which they were discharged, even where earlier shots were directed at non-vital areas
  • A Shepherd direction (requiring a jury to be satisfied beyond reasonable doubt of intermediate facts indispensable to a verdict) is not triggered simply because there are multiple factual issues at trial; it applies only where a particular fact is truly indispensable to the verdict
  • Where the final act relied upon for the mental element of an offence is unambiguous, a specific unanimity direction is not required because the jury must necessarily have been unanimous about that act
  • In dismissing the appeal, the Court noted that applications for extension of time and leave to appeal carry real costs and should only be brought where the applicant's interests stand to be appreciably advanced
  • Extensions of time and leave may be granted, despite an absence of merit in the grounds, where doing so serves the purpose of bringing a matter to finality

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 29, 33A, 98
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Shepherd v The Queen (1990) 170 CLR 573
- Dansie v The Queen [2022] HCA 25
- Pell v The Queen (2020) 268 CLR 123
- Lane v The Queen (2018) 265 CLR 196
- Kentwell v The Queen (2014) 252 CLR 601
- R v Baden-Clay (2016) 258 CLR 308
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
- MFA v The Queen (2002) 213 CLR 606
- M v The Queen (1994) 181 CLR 487
- Royall v The Queen (1991) 172 CLR 378
- The Queen v Crabbe (1985) 156 CLR 464