AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
66
Court of Criminal Appeal 28 October 2004

R v Abou-Chabake [2004] NSWCCA 356 revised - 29

[2004] NSWCCA 356

Also reported as (2004) 149 A Crim R 417
Homicide
CRIMINAL PRACTICE & PROCEDURE FRESH EVIDENCE PRINCIPLES DUE DILIGENCE WHETHER EVIDENCE CREDIBLE WHETHER MANSLAUGHTER OPEN

Citation: R v Abou-Chabake [2004] NSWCCA 356
Court: NSW Court of Criminal Appeal
Date: 28 October 2004
Judge(s): Mason P, Levine J, Kirby J (Mason P and Levine J agreeing with Kirby J)

Background

The appellant was convicted by jury of the murder of Romeo Nasr, who was shot and killed in Campsie on the night of 6 May 2001. The Crown's case was that the appellant, following a physical altercation with the deceased earlier that evening, took a handgun and fired seven shots at the deceased's car as it drove along a residential street. One bullet entered the deceased's heart. The jury also acquitted the appellant of the attempted murder of the deceased's uncle, who was a passenger in the vehicle.

Howie J sentenced the appellant to 20 years imprisonment with a non-parole period of 15 years. The appellant challenged both conviction and sentence before the Court of Criminal Appeal.

  • Whether the appellant should be granted leave to rely on fresh evidence not placed before the trial jury, and whether that evidence could have affected the verdict
  • Whether the trial judge erred by failing to leave manslaughter by an unlawful and dangerous act as an alternative verdict for the jury to consider
  • Whether the trial judge erred by failing to leave manslaughter by excessive self-defence as an alternative verdict
  • Whether the sentencing judge erred by declining to find certain mitigating facts, including that the appellant had been motivated by fear of the deceased

Decision

Fresh evidence: The Court considered the established principles governing fresh evidence applications, including whether due diligence had been exercised and whether the proposed evidence was credible and capable of affecting the outcome. The Court found that the fresh evidence ground was not made out. It rejected the argument that there was a significant possibility the jury would have acquitted had the evidence been placed before them, and noted considerations going to whether the failure to call the evidence reflected a tactical decision at trial rather than a genuine inability to obtain it.

Manslaughter alternatives: The Court examined whether it was reasonably open on the trial evidence to leave manslaughter by an unlawful and dangerous act as an alternative verdict. It concluded that this alternative was not properly available on the evidence and that the trial judge had not erred in declining to direct the jury on it.

Excessive self-defence: The Court similarly found that manslaughter by excessive self-defence was not available on the evidence. The facts did not support a conclusion that the appellant had used disproportionate force in response to a genuine belief that he needed to defend himself. The shooting followed a fight that had already ended and a gun had been handed to the appellant in its aftermath.

Sentence: On the sentence appeal, the Court found no error in the sentencing judge's refusal to accept that the appellant acted out of fear of the deceased. Howie J had noted that there was no evidence the deceased was armed, that he was seeking only a fistfight to settle the earlier dispute, and that nothing suggested the appellant faced any threat beyond possible injury to his pride or standing. The Court of Criminal Appeal accepted that conclusion as open to the sentencing judge on the available material.

Orders Made

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

Key Takeaways

  • A fresh evidence application will not succeed simply because the evidence was not called at trial. The Court of Criminal Appeal confirmed that an applicant must satisfy due diligence requirements, and evidence not called as a result of a tactical decision at trial will not readily be admitted on appeal.
  • Where the trial evidence does not provide a proper basis for an alternative verdict, the trial judge is not obliged to direct the jury on that alternative. The Court found no error in the failure to leave either form of manslaughter where the facts did not support either route.
  • Excessive self-defence requires an evidentiary foundation that the accused genuinely believed defensive action was necessary. On the facts here, the physical altercation had concluded before the shooting, making that foundation absent.
  • No error was established in the sentencing judge's refusal to find mitigation based on fear of the deceased, where the objective evidence showed the deceased was unarmed, had not previously threatened the appellant, and intended only a fistfight.
  • In dismissing both appeals, the Court of Criminal Appeal reinforced that appellate courts will not disturb factual findings made by a sentencing judge where those findings were plainly open on the material before the court.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crimes Amendment (Self Defence) Act 2001 (NSW)

Cases:
- R v Bikic [2002] NSWCCA 227
- R v M [2002] NSWCCA 66
- R v Sleiman [2003] NSWCCA 231
- Ratten v The Queen (1974) 131 CLR 510
- Lawless v The Queen (1979) 142 CLR 659
- Mickelberg v The Queen (1989) 167 CLR 259
- Gallagher v The Queen (1986) 160 CLR 392
- Edwards v The Queen (1993) 178 CLR 193
- Leuschel v Police (1999) 75 SASR 231
- Ilic and Sammut (2000) 118 A Crim R 378
- R v Abou-Chabake [2003] NSWSC 125
- Pemble v The Queen (1971) 124 CLR 107
- R v Taylor (2002) 129 A Crim R 146