Regina v Danny ABBAS [2006] NSWCCA 331

New South Wales Court of Criminal Appeal

CITATION: Regina v Danny ABBAS [2006] NSWCCA 331

HEARING DATE(S): 1 August 2006

JUDGMENT DATE: 19 October 2006

JUDGMENT OF: Spigelman CJ at 1; Hoeben J at 103; Rothman J at 104

DECISION: 1 Appeal allowed; 2 A new trial be conducted.

CATCHWORDS: CRIMINAL LAW – Appeal and New Trial – Verdict unsupportable having regard to the evidence.

CASES CITED: M v The Queen (1994) 181 CLR 487

PARTIES: Danny Abbas (Appellant) Regina (Respondent)

FILE NUMBER(S): CCA 2006/874

COUNSEL: TA Game SC (Appellant) DC Frearson SC (Respondent)

SOLICITORS: C Taylor (Appellant) S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3290

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 16 December 2004

- 1 - IN THE COURT OF CRIMINAL APPEAL 2006/874

SPIGELMAN CJ HOEBEN J ROTHMAN J

Thursday 19 October 2006 REGINA v Danny ABBAS Judgment 1 SPIGELMAN CJ: The Appellant was convicted of two counts of maliciously shooting with intent to do grievous bodily harm. These were alternatives to two counts of shoot with intent to murder, of which he was acquitted. There were two victims who were shot within seconds of each other. The appeal against conviction involves a single ground of appeal: that the verdict cannot be supported having regard to the evidence. There is also an appeal against sentence. 2 The shooting occurred at about 2:38am at a New Year's celebration involving 200 to 300 patrons at Adeel's Palace, a restaurant in Punchbowl. The nature of the evening, the time of day and the fact that alcohol in significant quantities was consumed by some of those attending, explains the considerable divergence in eyewitness accounts of the events. 3 Shortly before the shootings, two fights occurred between patrons. The first involved some women at the gathering. The second fight involved a wider group of patrons and was appropriately characterised as a brawl. The second fight included the victim, Anthony Moubarak, having an altercation with another young man who was, on the Crown case, the Appellant, Danny Abbas. Shortly after that fight, the gunman shot Antoin Bou Najem and Anthony Moubarak. There were a number of witnesses to the crime. The movement of individuals within the establishment was recorded by security cameras. There was, however, no camera either in or just outside the kitchen area where the shootings occurred, although a CCTV camera did record across the area in front of the kitchen entrance from the bar area. 4 The Crown case was largely circumstantial and there are a number of discrepancies between the accounts of the respective witnesses. Such was to be expected given the circumstances of the evening. The CCTV footage, although not of high quality, is an important piece of objective evidence. 5 The Crown's case was and is that the gunman is the same person who fought with Anthony Moubarak during the second fight between patrons. The Crown alleged that the security camera footage of the Appellant exiting and re-entering the building following the fight is consistent with its case that he returned with a handgun, which he subsequently used for the shooting. The presence of blood on the face of the gunman at the time of the shooting, which is emphasised in the eyewitness accounts is of central significance. No CCTV image shows the Appellant bleeding in a way consistent with witness accounts. 6 The defence case at trial was that the Crown case did not establish that the Appellant was the shooter to the requisite standard. The Appellant invoked his right to remain silent and did not give evidence at any stage. The defence called a witness, Talal Rifai, who gave a version of events exculpatory of the Appellant. He denied that the Appellant was involved in either the fight or the shooting and provided an alternative account of how the Appellant received a wound to his face for which he subsequently sought medical treatment. 7 In support of the single ground of the conviction appeal Mr T Game SC, who appeared for the Appellant, emphasised the following factors: · The absence of blood on the Appellant's face in video evidence; · Contradictions between witness descriptions of the gunman and the actual appearance of the Appellant; · Witness statements that the gunman left through the main reception, contrary to the accepted departure point for the Appellant through the kitchen; · The absence of evidence to support the Crown's contention that the security camera shows the Appellant carrying a gun; · Evidence from the Baz family that was contrary to the Crown's case that the Appellant was the gunman. 8 On appeal, the Crown pointed to the following direct and circumstantial evidence as capable of supporting the conviction: · Evidence of identification, especially the identification of the Appellant as the gunman by Simon Bouzani; · Evidence of resemblance/identification, specifically the identification of Eva Moubarak and Jehad Harb of the Appellant as the gunman and the fact that the only identification made by any witness was of the Appellant; · Anthony Moubarak and Jehad Harb's identification of the gunman as the same person as the man involved in the earlier fight with Anthony Moubarak; · The Appellant's presence in the restaurant at the relevant times and his approach to and departure from the kitchen area immediately after the shooting; · Surveillance material disclosing the sequence of events and movements of the Appellant; · Comparison of the Appellant's appearance and witness descriptions of the gunman; · The injury to the Appellant's forehead which was consistent with the blood seen on the shooter's face; · An inference from the fact that the gunman and the man involved in the fight with Anthony Moubarak was the only person observed by witnesses to be injured at the relevant time. 9 Mr Game submitted that this case did not turn on issues of credibility, but on whether the verdict was capable of being supported by the evidence. This Court, he submitted, was equally equipped to determine that matter as the jury. (Appeal Transcript, p18 (from 25)–p19 (to 5).) The test for this Court, pursuant to M v The Queen (1994) 181 CLR 487, is that if it feels reasonable doubt, the jury ought to have felt a reasonable doubt. 10 Mr Frearson SC, who appeared for the Crown on the appeal, submitted that the case turns on the accumulation of the evidence. He accepted that there were some unanswered questions. However, he submitted, a sufficiently coherent story overall was presented at trial. (Appeal Transcript, p25 (from 50).)