The muzzle flash from the revolver would have affected AB's ability to see and the fact that the incident occurred very
Judgment Summary Supreme Court New South Wales Court of Criminal Appeal Dib v R [2016] NSWCCA 15 Hoeben CJ at CL, Adams J, and McCallum J Today the Court of Criminal Appeal granted the applicant leave to appeal his conviction for murder and quashed the jury’s verdict of 9 July 2012. The appellant has been ordered to be released forthwith. After being found guilty by a jury on 9 July 2012 on two counts of murder, Barr AJ of the Supreme Court sentenced the applicant on 23 November 2012 to a partially accumulated sentence of 40 years with an effective non-parole period of 30 years. On appeal the applicant sought to argue a total of 11 grounds. Amongst these was a ground that the verdicts of guilty were unreasonable and could not be supported having regard to the evidence. The Court sought to determine this question first as a finding in the applicant’s favour on this ground would necessarily require the verdict to be quashed. The facts giving rise to the appeal relate to a shooting that occurred on Kathleen Street, Punchbowl shortly after 10pm on 23 November 2000. The victims, AB and his wife, along with their young son were driving in a northerly direction along Kathleen Street when their car was approached by another vehicle from the rear which flashed its lights. As AB slowed their car, the car that had approached pulled alongside the driver’s side of the car. One of the car’s occupants fired approximately four shots into the car. AB’s wife died as a result of two gunshot wounds from this (incident/attack) and AB received a serious wound to his neck that required surgery. The Crown’s case at trial was that the applicant was in the vehicle that approached AB’s car and that he had been the one responsible for firing the gun that wounded AB and killed his wife. In support of its case the Crown heavily relied upon the exchange between the Police, the victim and his friends immediately after the incident as well as a series of statements that were made by AB while he was in recovery in hospital that positively identified the applicant. The Court determined that the reliability of AB’s evidence in hospital was questionable. None of his interviews with Police were recorded in either an audio or video format and all of the notes used by AB that formed part of his statements were undated. Upon his discharge from hospital AB attended upon Police and sought to change the statements that he had made while in hospital. AB’s retraction of the positive identification of the applicant as the shooter was maintained under oath during the course of his evidence at trial. His evidence to the Police upon release at hospital and at trial was that the shooter’s face was concealed in a balaclava. There was an inherent contradiction in the Crown case. On the one hand, the Crown submitted that AB was untruthful in what he said at the scene of the accident, upon release This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
from hospital and subsequently at trial. However, the Crown then submitted that his version and statements in hospital should be accepted as true. The Court also determined that the physical conditions of the night in question would have raised doubts as to AB’s ability to identify the shooter. The incident occurred late at night in a poorly lit street. The muzzle flash from the revolver would have affected AB’s ability to see and the fact that the incident occurred very quickly were all factors to be taken into account. By majority the Court found that it was not possible for AB to have accurately recollected the identity of his shooter. By combination of the medications that were part of his treatment in hospital, the potentially preconceived notions held by Police as to the identity of the shooter and the physical circumstances surrounding the incident itself, the Court determined that a jury could not have been reasonably convinced beyond a reasonable doubt of the applicant’s guilt.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
