Dib v R [2016] NSWCCA 15

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dib v R [2016] NSWCCA 15 Hearing dates: 1 September 2015; 2 September 2015 Date of orders: 15 February 2016 Decision date: 15 February 2016 Before: Hoeben CJ at CL at [1] Adams J at [193 ] McCallum J at [194] Decision: (1) Leave to appeal granted and appeal allowed. (2) The jury's verdict of 9 July 2012 quashed and in lieu thereof a verdict of acquittal entered. (3) The applicant to be released from custody forthwith. Catchwords: CRIMINAL LAW – CONVICTION APPEAL – murder – deceased and husband [AB] shot by occupants of another car as it drove past – whether applicant in other car had fired the shots – AB key Crown witness – unreliability of AB's evidence – changes in AB's evidence – difficulties in AB's identification of applicant at hospital – effect of medication on AB's identification evidence – difficulties in AB's ability to identify applicant at time of incident, e.g. darkness, muzzle flash and speed of events – difficulties with evidence as to motive – jury in no better position than this Court in assessing hospital evidence – verdict unreasonable and cannot be supported having regard to the evidence – conviction must be quashed. Legislation Cited: Criminal Appeal Act 1912 – ss 5(1)(a) and (b), 6(1) Evidence Act 1995 – s 38, s 128, S 195 Cases Cited: Burrell v R [2009] NSWCCA 193 MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 MFA v R [2002] HCA 53; 213 CLR 606 R v Micallef [2002] NSWCCA 480; 136 A Crim A 127 R v Moustapha Dib [2012] NSWSC 1431 SKA v The Queen [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: Moustapha Dib – Applicant Regina – Respondent Crown Representation: Counsel: T Game SC/H Dhanji SC/S Buchen – Applicant Ms W Abraham QC/Ms JD Williams – Respondent Crown