Hamad v R [2023] NSWDC 492

District Court New South Wales

Medium Neutral Citation: Hamad v R [2023] NSWDC 492 Hearing dates: 01 November 2023 Date of orders: 15 November 2023 Decision date: 15 November 2023 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) The appeal against conviction is dismissed. Catchwords: CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Cases Cited: AG v Director of Public Prosecutions [2015] NSWCA 218 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Gianoutsas v Glykis [2006] NSWCCA 137 Liberato v The Queen (1985) 159 CLR 507 Lumney v Director of Public Prosecutions [2021] NSWCA 186 McNab v Director of Public Prosecutions [2021] NSWCA 298 Category: Principal judgment Parties: Rex (Crown) Shady Hamad (Appellant) Representation: Solicitors: Office of the Director of Public Prosecutions (Crown) One Group Legal (Appellant) File Number(s): 2022/330705 Publication restriction: None

JUDGMENT

Introduction 1. On 3 April 2023, Shady Hamad (the appellant) was convicted of two counts of assault occasioning actual bodily harm, contrary to s 59(1), Crimes Act 1900 by her Honour Magistrate Atkinson (the magistrate) sitting at Sutherland Local Court. The appellant brings an appeal as of right against those convictions. 2. The appellant contended in the appeal that the magistrate failed to give effect to the Liberato principles and failed to adequately consider the inconsistencies in the complainant's evidence: Liberato v The Queen (1985) 159 CLR 507. The appellant ultimately submitted that there was a reasonable doubt as to the appellant's guilt and that the appeal should be allowed. 3. The alleged inconsistencies in the complainant's evidence were alleged to be: 1. The complainant gave evidence in chief that the appellant threw his licence forcefully onto the bonnet of the complainant's vehicle and that was not referred to in his statement to the police. 2. The complainant did not state in his evidence in chief that the appellant stomped on his chest but recalled that detail in cross-examination after being shown a copy of the hospital discharge summary (which did contain that allegation). The complainant did not specify in his evidence when the stomp on the chest occurred. 3. The complainant did not mention being dragged in the chokehold in his evidence in chief, but he did describe a similar action to the police when they first arrived at the scene, in an interaction that was captured on the body worn camera footage. 4. The complainant's evidence about the kick to his chin was implausible. 5. The complainant gave evidence in chief that he was placed in the chokehold the first time for 10-15 seconds, when he stated this was 40 seconds in his police statement. In cross-examination he gave an estimate of 20-30 seconds. 6. The complainant's evidence was that he did not touch the appellant's vehicle as he tried to leave whereas he stated in his police statement that he grabbed the driver's side door handle in an effort to stop the appellant from leaving. 7. The complainant gave evidence that he tried to grab the appellant's shoulder to try to stop him from leaving and this caused the appellant to throw a punch at him and that was not referred to in his statement to the police. 8. The complainant accepted after viewing the dash camera footage that he did not go back into lane 2 to turn right into Hudson Street, but in fact turned right from the wrong side of the road.