Citation: Regina v Sabbah [2004] NSWCCA 28 revised - 5/10/2005
Court: NSW Court of Criminal Appeal
Date: 19 March 2004
Judge(s): Ipp JA; Sully J; Adams J
Background
The appellant was convicted in the District Court before Hock DCJ on four counts arising from a series of violent incidents in February 2001 in Sydney's eastern suburbs. The counts included detaining two individuals for advantage and robbing them of money and a mobile phone. A co-accused was charged with the same five counts but the jury could not reach a verdict in his case.
The Crown's principal witness was a drug dealer who gave evidence that the appellant approached him claiming to control drug dealing in the eastern suburbs and demanding "rent." The witness was subsequently forced into a car at gunpoint, detained, driven to a park, beaten, threatened with firearms and robbed. The appellant was acquitted on one of the five robbery counts.
The District Court sentenced the appellant to an aggregate head sentence of ten and a half years imprisonment, with an effective non-parole period of seven years. He appealed both his convictions and his sentence to the Court of Criminal Appeal.
Legal Issues
- Whether the jury's verdicts were unreasonable or inconsistent, given the acquittal on one robbery count alongside guilty verdicts on related counts
- Whether the trial judge erred by failing to give a general warning under s 165 of the Evidence Act 1995 regarding the credibility of the Crown's principal witness (a self-confessed drug dealer)
- Whether the trial judge failed to give adequate directions concerning the fact that the appellant did not give evidence at trial
- Whether the trial judge erred by failing to direct the jury on the "claim of right" defence
- Whether the sentences imposed were manifestly excessive and whether the totality principle had been properly applied
Decision
Verdict consistency and reasonableness. The Court found that the verdicts were not unreasonable and were not inconsistent in any impermissible sense. The acquittal on count 2 did not undermine the guilty verdicts on the remaining counts. Different counts can properly attract different verdicts where the evidence relating to each count is assessed separately and the overall picture is coherent.
Section 165 warning. The Court rejected the argument that the trial judge was obliged to give a general unreliability warning about the Crown's principal witness merely because he was a drug dealer. The circumstances did not generate a mandatory obligation to warn under s 165 of the Evidence Act 1995, and no error was established in the trial judge's approach.
Directions on the accused's silence. The Court acknowledged the importance of directing juries, as stated in R v Davis, that there may be reasons other than guilt why an accused does not give evidence. However, the Court found no substantial miscarriage of justice had occurred. Adams J noted that the jury's acquittal on one count suggested the jury had not drawn an adverse inference from the appellant's silence, which supported the conclusion that any deficiency in the direction caused no practical harm.
Claim of right. The Court found that the trial judge's failure to direct on claim of right did not constitute a reversible error on the facts. Ipp JA expressed some surprise at the availability of the claim of right defence to robbery in this context, but Adams J respectfully disagreed, noting that where an intention to defraud is an element of an offence, an honest claim of right is necessarily inconsistent with that element and the defence logically should be available. On sentencing, the Court found that the trial judge's reference to an overall sentence of "ten years" was an inadvertent error in her remarks, and that the individual sentences she imposed amounted to ten and a half years as intended. The totality principle had been properly applied.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, but sentence appeal dismissed
Key Takeaways
- Differing verdicts across related counts do not automatically render those verdicts unreasonable or inconsistent; each count must be assessed on its own evidence.
- Under s 165 of the Evidence Act 1995, a general unreliability warning is not automatically required simply because the Crown's principal witness has a criminal or disreputable background; the specific circumstances must call for it.
- A jury should ordinarily be directed that there may be innocent explanations for an accused's failure to give evidence, consistent with the principle affirmed in R v Davis; however, failing to give such a direction will not always result in a conviction being overturned.
- Adams J confirmed that where an intention to defraud is an element of an offence, an honest claim of right is necessarily inconsistent with that element, making the defence logically available regardless of the offence type.
- In assessing whether a sentence is manifestly excessive, appellate courts will look to whether the sentencing judge's overall intention is clear from the reasons taken as a whole, and an isolated numerical error in remarks does not necessarily vitiate the sentence imposed.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 38(1)(c), 128, 165
Cases
- Azzopardi v The Queen (2001) 205 CLR 50
- Everett v The Queen (1994) 181 CLR 295
- Jones v The Queen (1997) 191 CLR 439
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 193 ALR 184
- M v The Queen (1994) 181 CLR 487
- R v AEM [2002] NSWCCA 58
- R v Crawley [2003] NSWCCA 149
- R v Davis (1999) NSWCCA 15
- R v Fuge [2001] NSWCCA 208
- R v Hendradinata [2003] NSWCCA 161
- R v ITA [2003] NSWCCA 174
- R v OGD (1997) 98 A Crim R 151
- R v Sanders (1991) 57 SASR 102
- R v Sanderson (unreported, NSWCCA, 18 July 1994)
- R v Spokes [1999] VSCA 210
- Taylor v The Queen (unreported, WACCA, 6 April 1998)
- Wong v The Queen (2001) 207 CLR 584