R v HOUSSEIN [2003] NSWCCA 74

New South Wales Court of Criminal Appeal

CITATION : R v HOUSSEIN [2003] NSWCCA 74 HEARING DATE(S) : 10 December 2002 JUDGMENT DATE : 28 March 2003

JUDGMENT OF : Meagher JA at 1; Hulme J at 2; Hidden J at 61 DECISION : See paragraph 60

PARTIES : Regina Mustafa Max HOUSSEIN FILE NUMBER(S) : CCA 60382/02 COUNSEL : Crown: EA Wilkins Appellant: MC Ramage QC SOLICITORS : Crown: SE O'Connor Appellant: Voros Lawyers

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0022 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER :

- 22 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60382/02 MEAGHER JA HULME J HIDDEN J Friday, 28 March 2003 R v Mustafa Max HOUSSEIN

Judgment 1 MEAGHER JA: I agree with Hulme J. 2 HULME J: On 8 April 2002 Mustafa Hussein pleaded not guilty to 2 counts on which he was indicted before Judge Judith Gibson, viz.- (1) For that he on 25 October 2001… did maliciously inflict grievous bodily harm upon David Houssein with intent thereby to do grievous bodily harm to the said David Houssein. (2) Further that he on 25 October 2001… did threaten to cause an injury to Christopher Petersen intending thereby to influence Christopher Petersen a person intended to be called as a witness in a judicial proceeding, namely Regian v Max Houssein to withhold true evidence. 3 The first count was laid under s33 of the Crimes Act. Section 34 and 35 of that Act relevantly provide:- 34. Where, on the trial of a person for an offence under s33, the jury are satisfied that the accused is guilty of the wounding, or inflicting grievous bodily harm, mentioned in the indictment, but are not satisfied that the person is guilty of the intent charged therein, they may acquit the person of such intent and find the person guilty of an offence under s35, and the person shall be liable to punishment accordingly. 35. (i) Whoever maliciously by any means:- (a) wounds any person; or (b) Inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 7 years 4 It was thought desirable to formulate in writing the alternative for which ss34 and 35 provided. This was done by counsel appearing for the Appellant at his trial and, at least implicitly, acquiesced in by counsel for the Crown and her Honour. The formulation was in terms:- That on 25 October 2001 … (the accused) did maliciously inflict grievous bodily harm upon David Houssein and did thereby occasion grievous bodily harm to the said David Houssein. 5 On 12 April 2002, the jury acquitted the Appellant on the two charges in the indictment but convicted him of the alternative charge. On 14 June 2002, her Honour sentenced him to imprisonment for 3 years including a non-parole period of 2 years and 3 months, both periods commencing on 25 October 2001. 6 A Notice of Appeal dated 20 June 2002 and stating 4 grounds of appeal was filed. On 14 October 2002 another document "Grounds of Appeal" listing 9 grounds was received by the Registry. It apparently was not served on the Crown. The grounds in this document, in the light of which the appeal was ultimately conducted and may conveniently be considered, were:- 1. The trial miscarried. 2. The Appellant was convicted of an offence not known to law. 3. The trial judge erred in putting to the jury as an alternative count (the charge which I have set out above). 4. The trial judge erred in giving wrong, misleading and confusing directions concerning the alternative count. 5. The trial judge erred in her directions to the jury concerning the accused's innocence. 6. The trial judge erred in permitting the Crown to read onto the record a statement of Peterson in re-examination. 7. The trial judge erred in failing to direct the jury in respect of the evidence referred to in 6 above.