Abdallah v R [2016] NSWCCA 34

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Abdallah v R [2016] NSWCCA 34 Hearing dates: 25 November 2015 Decision date: 09 March 2016 Before: Meagher JA; R A Hulme J; Bellew J Decision: 1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted but the appeal dismissed. Catchwords: CRIMINAL LAW – conviction appeal – murder – where ballistics experts conferred and agreed as to parts of evidence – where Crown sought to adduce evidence from expert beyond that agreement – whether Supreme Court Rules 1970 (NSW), Pt 75, Div 1, r 3K applied, notwithstanding no direction made pursuant to r 3K(1) – whether trial judge erred in permitting Crown to adduce evidence inconsistent with agreement CRIMINAL LAW – conviction appeal – murder – where issue of self-defence raised – where error conceded in Crown Prosecutor's closing address by reference to 'reasonable grounds' for belief as to necessity of actions – where no objection by appellant's counsel at trial – whether use of description 'genuine belief' exacerbated error by suggesting requirement of reasonable grounds for belief – whether error caused trial to miscarry – whether error remedied by trial judge's directions CRIMINAL LAW – conviction appeal – murder – where issue of self-defence raised – whether Crown case in closing as to events of shooting materially different to that in opening and conduct of case – whether open to jury to reject self-defence if reasonably possible that shooting occurred in sequence described by appellant – whether open to jury to be satisfied beyond reasonable doubt as to appellant's guilt if appellant's evidence of belief as to necessity of actions rejected – whether verdict unreasonable or unsafe CRIMINAL LAW – sentence appeal – murder – whether sentencing judge erred in finding intention to kill on basis not put to the jury by Crown – whether sentencing judge erred in finding seriousness of offence aggravated by premeditation or planning – whether sentencing judge failed to take provocation into account – whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), ss 18, 23, 29, 418, 419, 421 Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Criminal Appeal Rules (NSW), r 4 District Court Act 1973 (NSW), s 171D District Court Rules 1973 (NSW) Evidence Act 1995 (NSW), ss 55, 137, 191 Supreme Court Rules 1970 (NSW), Pt 75, Div 1, rr 3J, 3K Uniform Civil Procedure Rules 2005 (NSW), rr 31.21, 31.22 Cases Cited: Haoui v The Queen [2008] NSWCCA 209; 188 A Crim R 331 Jubraeel v R [2015] NSWCCA 131 Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544 Libke v The Queen [2007] HCA 30; 230 CLR 559 M v The Queen [1994] HCA 63; 181 CLR 487 R v Acton [2001] QCA 155 R v Milne (No 1) [2010] NSWSC 932; 260 FLR 166 R v Conlon (1993) 69 A Crim R 92 R v Katarzynski [2002] NSWSC 613 R v Oblach [2005] NSWCCA 440; 65 NSWLR 75 Robinson v The Queen [2006] NSWCCA 192; 162 A Crim R 88 Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645 Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460 Category: Principal judgment Parties: Tarek Abdallah (Appellant) Regina (Crown) Representation: Counsel: G Bashir SC (Appellant) M Cinque SC (Crown)