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Court of Criminal Appeal 26 July 2023

Fazlilar v R

[2023] NSWCCA 183

HomicideFirearms & weapons
CRIME APPEALS APPEAL AGAINST CONVICTION FOR MURDER UNREASONABLE VERDICT APPEAL DISMISSED

Citation: Fazlilar v R [2023] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 26 July 2023
Judges: Beech-Jones CJ at CL, Fagan J, R A Hulme AJ

Background

The applicant was convicted by jury in May 2018 of the murder of a man at a serviced apartment in the Sydney CBD on 14 November 2015. On the day of the killing, the applicant, the deceased, and a mutual associate spent several hours in the suite consuming alcohol, cocaine and methamphetamine. The applicant discovered a contact saved on the deceased's mobile phone under the label "police crime," which proved to be the Crime Stoppers number. He confronted the deceased aggressively, calling him a "dog."

After seizing the deceased by the collar and slapping him across the face, the applicant drew a handgun from his waistband. He tapped the muzzle against the deceased's left temple two or three times, then lowered the weapon and fired a single shot into the posterior aspect of the deceased's left upper thigh. The projectile entered the pelvic cavity, severed the internal iliac vein, and caused massive internal bleeding. The deceased died within minutes.

The applicant sought leave to appeal his conviction out of time on the sole ground that the verdict was unreasonable. He did not contest the factual account given by the associate who witnessed the shooting. His challenge was confined entirely to the mental elements of murder.

  • Whether the jury ought to have had a reasonable doubt that the act of firing the gunshot was deliberate, rather than accidental.
  • Whether the jury ought to have had a reasonable doubt that the act was accompanied by an intention to cause grievous bodily harm, as required for a murder conviction.

Decision

On the question of deliberateness, the Court found the inference that the applicant fired deliberately was overwhelming. The applicant had displayed anger towards the deceased immediately before the shooting, demonstrated control of the weapon by tapping it against the deceased's temple, then deliberately lowered it to the leg and discharged it at close range. He expressed no regret and made no claim that the shot had been accidental either immediately after or at any subsequent point. Taken together, those circumstances admitted no serious doubt that the firing was intentional.

On the question of intent to cause grievous bodily harm ("really serious bodily harm"), the Court applied common sense. Firing a handgun into another person's lower limb at close range would, in the understanding of any person of moderate intelligence, be expected to cause grievous bodily harm. The inference that the applicant intended that consequence followed inevitably from his deliberate act.

The Court addressed two specific defence arguments in turn. First, the applicant contended that the forensic evidence did not establish the muzzle was pressed against the deceased's clothing, only that it was fired very close. The Court rejected this as immaterial: there was no meaningful difference between a shot fired with the muzzle touching clothing and one fired at arm's length in terms of what the act reveals about intent. Second, the applicant relied on ballistics evidence that the unrecovered handgun might have had a light ("hair") trigger requiring minimal force to discharge. The Court dismissed that argument, holding that the firing was either deliberate or not. Whether the trigger required one kilogram or three and a half kilograms of force did not generate any reasonable doubt. The applicant deliberately applied whatever force was necessary.

The possible intoxication of the applicant was acknowledged as a factor to be considered, but the Court held it was relatively insignificant against the strength of the inference of specific intent arising from the nature of the act itself.

Orders Made

  • Time for filing the application for leave to appeal extended to 16 December 2022.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that deliberateness and intent can be inferred from the circumstances surrounding a shooting, including demeanour, control of the weapon, and absence of any assertion of accident.
  • A jury is entitled to draw an inference of intent to cause grievous bodily harm from the act of discharging a handgun into another person's limb at close range, without direct evidence of the shooter's subjective state.
  • Evidence of possible intoxication does not automatically generate a reasonable doubt about specific intent where the act itself is, by its nature, calculated to cause grievous bodily harm.
  • Minor imprecisions in forensic evidence (such as the exact distance of the muzzle from the target) do not displace an otherwise overwhelming inference of intent where the conduct is unequivocal.
  • The Court confirmed that where the weapon is unrecovered and its trigger mechanism unknown, speculation about the force required to discharge it does not create a meaningful doubt about whether the firing was deliberate.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63