Alexander ZAPHIR v R [2009] NSWCCA 124

New South Wales Court of Criminal Appeal

CITATION: Alexander ZAPHIR v R [2009] NSWCCA 124

HEARING DATE(S): 19 March 2009

JUDGMENT DATE: 29 April 2009

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Howie J at 85

DECISION: Appeal against conviction dismissed.

CATCHWORDS: CRIMINAL LAW - particular offences - offences against the person - assault with intent to rob in company - whether conviction unreasonable

LEGISLATION CITED: Crimes Act 1900 Evidence Act 1995

CATEGORY: Principal judgment

R v Bolder; R v Zaphir [2008] NSWCCA 222 M v The Queen [1994] HCA 63; 181 CLR 487 CASES CITED : Jones v The Queen [1997] HCA 12; 191 CLR 439 MFA v The Queen [2002] HCA 53; 213 CLR 606 Markuleski v R [2001] NSWCCA 290; 52 NSWLR 82

PARTIES: Alexander ZAPHIR (Appellant) REGINA (Respondent)

FILE NUMBER(S): CCA 2008/0571

COUNSEL: Self represented / Dale Higgins (Appellant) P A Leask (Respondent)

SOLICITORS: Self represented / Dale Higgins (Appellant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0837

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ QC

LOWER COURT DATE OF DECISION: 18 April 2008

IN THE COURT OF CRIMINAL APPEAL 2008/0571

McCLELLAN CJ at CL SIMPSON J HOWIE J

Wednesday 29 April 2009 Alexander ZAPHIR v R Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. 2 SIMPSON J: On 14 January 2008 the appellant was arraigned in the District Court on an indictment alleging an offence of assault with intent to rob whilst in company, an offence against s 97(1) of the Crimes Act 1900. As an alternative, the indictment alleged an offence against s 59(2) of the Crimes Act, of assault occasioning actual bodily harm whilst in company. 3 Also arraigned, on the same indictment, was Dean Bolder. Each accused entered a plea of not guilty to each count, and a jury was empanelled. After a trial that ran over 9 days, the jury returned verdicts of guilty against each accused on the primary count. 4 Nicholson DCJ proceeded to sentence each offender on 18 April 2008. He sentenced each to a term of imprisonment made up of a non-parole period of 15 months and a balance of term of 9 months, to be served by way of periodic detention. 5 The Crown successfully appealed against the leniency of the sentences. Each accused was re-sentenced by this Court, to a term of full time imprisonment made up of a non-parole period of 2 ½ years and a balance of term of 2 years (R v Bolder; R v Zaphir [2008] NSWCCA 222, 25 September 2008). 6 The appellant now appeals against his conviction. The sole ground of appeal advanced is that the verdict of guilty is unreasonable and cannot be sustained having regard to the evidence. 7 The appellant was not legally represented in this Court. He had the able assistance of a friend, not a lawyer, who presented comprehensive and helpful written submissions. 8 The evidence discloses that this was a third (or possibly even a fourth) trial. It appears that at least one, possibly two, previous juries had failed to reach a unanimous verdict. (I say it is possibly a fourth trial, because that was stated by one witness; it is, however, more likely that that was a mistake, or a reference to some other proceeding such as the committal hearing. It is of no consequence.)