Abbosh v R; Bene v R [2011] NSWCCA 265

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Abbosh v R; Bene v R [2011] NSWCCA 265 Hearing dates: 16 September 2011 (written submissions closed 30 September 2011) Decision date: 09 December 2011 Before: Bathurst CJ at 1 James J at 6 Johnson J at 7 Decision: With respect to the Appellant Abbosh: 1. Appeal against convictions allowed. 2. Convictions and sentences on Counts 2 and 5 are quashed. 3. A new trial is ordered on Counts 2 and 5. With respect to the Appellant Bene: 1. Appeal against convictions allowed. 2. Convictions and sentences on Counts 2 and 5 are quashed. 3. A verdict of acquittal is entered on Count 5. 4. A new trial is ordered on Count 2. Catchwords: CRIMINAL LAW - conviction appeals - Appellants convicted of two counts of malicious wounding with intent to do grievous bodily harm - Abbosh wounds two persons - claim of self-defence - case against Bene based upon joint criminal enterprise and extended joint criminal enterprise - erroneous failure to exclude prejudicial evidence under s.137 Evidence Act 1995 - misleading directions concerning extended joint criminal enterprise - trial Judge adds unwarranted postscripts on directions concerning good character, right to silence and self-defence - no miscarriage of justice arising from these postscripts - whether verdicts unreasonable or cannot be supported by evidence - conviction of Bene on one count unreasonable - verdict of acquittal on that count - new trials ordered for Bene on remaining count and Abbosh on both counts Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Criminal Appeal Act 1912 Criminal Appeal Rules Cases Cited: R v Salah Bene and Calvin Abbosh [2010] NSWDC 218 R v Clough (1992) 28 NSWLR 396 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 R v Lisoff [1999] NSWCCA 364 R v GK [2001] NSWCCA 413; 53 NSWLR 317 R v O'Donoghue (1998) 34 A Crim R 397 House v The King [1936] HCA 40; 55 CLR 499 Cornwell v The Queen [2007] HCA 12; 231 CLR 260 R v Thompson [2002] NSWCCA 149; 130 A Crim R 24 FB v R [2011] NSWCCA 217 R v Trimboli (1979) 1 A Crim R 73 McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 Gillard v The Queen [2003] HCA 64; 219 CLR 1 RWB v R [2010] NSWCCA 147; 202 A Crim R 209 Colosimo v Director of Public Prosecutions [2006] NSWCA 293 R v Clough (1992) 28 NSWLR 396 Raumakita v R [2011] NSWCCA 126 R v Dang [2001] NSWCCA 321 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 Texts Cited: NSW Law Reform Commission, Report 129, "Complicity", December 2010 Category: Principal judgment Parties: Calvin Abbosh (Appellant) Saleh Bene (Appellant) Regina (Respondent) Representation: Mr SJ Odgers SC (Appellant Abbosh) Mr TA Game SC; Mr D Barrow (Appellant Bene) Mr JH Pickering (Respondent) Sid Hawach & Co (Appellant Abbosh) John B Hajje & Associates (Appellant Bene) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/6185 (Abbosh) 2009/6186 (Bene) Publication restriction: --- Decision under appeal Citation: R v Salah Bene and Calvin Abbosh [2010] NSWDC 218 Before: His Honour Judge Finnane QC File Number(s): 2009/6185 (Abbosh) 2009/6186 (Bene)