Khan v R [2012] NSWCCA 74

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Khan v R [2012] NSWCCA 74 Hearing dates: 21 February 2012 Decision date: 27 April 2012 Before: Macfarlan JA at [1] RS Hulme J at [56] Garling J at [57] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW - appeal - conviction - detention with the intention of holding to ransom in the company of others with occasioning of actual bodily harm - s 86(3) Crimes Act 1900 - whether verdict unsafe and unsatisfactory - s 6 Criminal Appeal Act 1912 - whether evidence to support Crown case Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Rasic v R [2009] NSWCCA 202 SKA v The Queen [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: Michael Dean Khan (Applicant) Regina (Respondent) Representation: Counsel: G Corr (Applicant) J Dwyer (Respondent) Solicitors: JPM Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2008/11508 Decision under appeal Citation: R v Michael Dean Khan Date of Decision: 2010-11-12 00:00:00 Before: Cogswell DCJ File Number(s): 2008/11508

Judgment 1MACFARLAN JA: On 6 September 2010, at the conclusion of a trial in the District Court before Cogswell DCJ and a jury of 12, the jury found the applicant guilty of the following offence with which he and two co-accused had been charged and to which they had pleaded not guilty: "On or about 4 September 2008, at Doonside, in the State of New South Wales, while in company with each other, [the accused] detained Maninder Singh without his consent and with the intention of holding him for ransom, and at the time of detaining in these circumstances, actual bodily harm was occasioned to Maninder Singh" (s 86(3) Crimes Act 1900). 2The jury also found the co-accused, Mr Saurav Mahay and Mr Dushand Rana, guilty of the offence charged. 3On 11 November 2010 the trial judge sentenced the applicant to imprisonment for a total term of four years and six months commencing on 9 September 2010, with a non-parole period of two years and eight months commencing on the same date. 4The sole ground of appeal against his conviction that the applicant pressed at the hearing of the appeal was that the jury's verdict against him was unsafe and unsatisfactory. As this ground of appeal does not raise "a question of law alone" (see s 5(1)(a) of the Criminal Appeal Act 1912), leave to appeal is required under s 5(1)(b) of that Act (Rasic v R [2009] NSWCCA 202 at [12]). 5In essence, the Crown's case against the applicant was as follows. On the evening of 4 September 2008 the victim ("Maninder") voluntarily accompanied the applicant's co-accused (to whom I shall refer as Saurav and Dushand) in a visit to the applicant's home. After they had arrived, Maninder asked to leave but Saurav and Dushand told him that he would have to stay. During the evening Maninder was taken to the backyard of the home where he was beaten by the co-accused in the presence of the applicant. Maninder was told that he could not leave until $7,000 was paid to the co-accused. He was threatened with a knife and detained at the applicant's home throughout the night. Shortly before midnight, four friends of Maninder, including Mr Vikram Singh ("Vikram"), entered Blacktown Police Station and complained that Maninder was being held elsewhere against his will. A number of telephone calls occurred thereafter between Vikram and those alleged to be detaining Maninder. A number of these calls were received by Vikram whilst he was at the police station and were intercepted and recorded by the police. At 11.55 am on 5 September 2008, the applicant rang Detective Senior Constable Camilleri at the police station and agreed to bring Maninder there by 12.30 pm. This did not occur and at 1.10 pm in Westfield Shopping Centre car park, across the road from the police station, police stopped a vehicle in which the applicant, his co-accused and Maninder were travelling. The applicant and his co-accused were arrested and subsequently charged with the offence for which they stood trial.