Atai v R [2014] NSWCCA 210

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Atai v R [2014] NSWCCA 210 Hearing dates: 6 March 2014 Decision date: 03 October 2014 Before: Basten JA at [1]; R A Hulme J at [21]; Schmidt J at [152] Decision: 1. Leave to appeal against conviction granted, with respect to grounds 1 and 4. 2. Appeal against conviction dismissed. 3. Leave to appeal against sentence granted. 4. Appeal against sentence dismissed. Catchwords: CRIMINAL LAW - murder - appeal against conviction - no evidence that witness in respect of whom s 165 Evidence Act warning sought might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings - incumbent upon defence to elicit evidence to that effect - no miscarriage resulting from omission to give Murray direction - no undermining of the onus of proof by trial judge stating that jury would have expected to hear challenge to denials by witnesses that they were the shooter if there was one - not persuaded that jury should have had a doubt that the applicant was the person who fired the gun that resulted in the death of the deceased - not persuaded that jury should have had a doubt that the applicant had the relevant mental state

CRIMINAL LAW - murder - appeal against sentence - unproductive to single out one subjective feature, age, in sentence comparison - necessary for sentence to reflect deterrence, denunciation and recognition of harm notwithstanding subjective case - sentence not manifestly excessive Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6 Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), s 165 Cases Cited: Clark v R [2001] NSWCCA 494; 123 A Crim R 506 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Imnetu v R [2014] NSWCCA 99 Kanaan v R [2006] NSWCCA 109 M v The Queen [1994] HCA 63; 181 CLR 487 Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Abdulkader and Hohaia [2006] NSWSC 866 R v Barrett [2009] NSWSC 338 R v Burt [2003] NSWCCA 248; 140 A Crim R 555 R v Cambey and Carney [2010] NSWSC 369 R v Carr [2009] NSWSC 995 R v Chan [2002] NSWSC 544 R v Clark [2001] NSWCCA 494; 123 A Crim R 506 R v Dennis [2009] NSWSC 1357 R v EM [2005] NSWSC 212 R v Gosling [2001] NSWSC 850 R v Hamzy [2004] NSWCCA 243 R v Harvey [2007] NSWSC 871 R v Houri [2007] NSWSC 615 R v Murray (1987) 11 NSWLR 12 R v Nguyen [2007] NSWSC 389 R v P Pham, V Pham and Nguyen [2003] NSWSC 1261 R v Shamouil [2009] NSWSC 24 R v Soto-Sanchez [2002] NSWCCA 160; 129 A Crim R 279 R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 R v Tatchell and Wildsmith [2010] NSWSC 495 R v Vann [2004] NSWSC 988 R v Wong [2010] NSWSC 171 R v Zaro [2007] NSWSC 756 Robinson v The Queen [1999] HCA 42; 197 CLR 162 SKA v The Queen [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: Masood Atai (Applicant) Regina (Respondent) Representation: Counsel: Mr T Game SC with Mr D Barrow (Applicant) Mr P Ingram SC (Crown) Solicitors: Criminal Defence Group Solicitor for Public Prosecutions File Number(s): 2010/36738 Decision under appeal Jurisdiction: 9111 Citation: [2011] NSWSC 1617 Date of Decision: 2011-12-13 00:00:00 Before: Grove AJ File Number(s): 2010/36738