the Lone Wolves Motorcycle Club. Mr Abdallah claimed that he fired the ... trial to miscarry or occasion a miscarriage o
Judgment Summary Supreme Court New South Wales Court of Criminal Appeal Abdallah v R [2016] NSWCCA 34 Meagher JA, R A Hulme & Bellew JJ
The Court of Criminal Appeal has dismissed appeals by Tarek Abdallah in relation to his conviction for the murder of Neal Todorovski and his sentence for that offence. On 4 January 2012, a physical altercation occurred between Mr Abdallah and three other men in the Sydney suburb of Sans Souci. At some point during that altercation, Mr Abdallah retrieved a gun from his vehicle and fired six shots at Mr Todorovski, who was a member of the Lone Wolves Motorcycle Club. Mr Abdallah claimed that he fired the shots in selfdefence. On 17 March 2014, Mr Abdallah was convicted of Mr Todorovski’s murder and sentenced to imprisonment for 26 years and 8 months, with a non-parole period of 20 years. In relation to his appeal against conviction, Mr Abdallah argued that his trial had miscarried because the Crown Prosecutor was allowed to adduce evidence as to the shooting that was contrary to the conclusions that had been agreed between the two ballistics experts. The Court found that the trial judge was correct to conclude that the Prosecutor did not require leave to adduce that evidence and that the evidence was admissible. Secondly, Mr Abdallah argued that his trial had miscarried because the Crown Prosecutor misstated the law of self-defence by suggesting that the jury had to be satisfied that he (Mr Abdallah) had reasonable grounds to believe that his actions in shooting Mr Todorovski were necessary in self-defence. The Crown conceded that the Prosecutor’s statements to that effect misstated the law. However, the Court concluded that this error did not cause the trial to miscarry or occasion a miscarriage of justice. The trial judge correctly stated the legal principles as to self-defence and emphasised that the jury was bound to accept and apply those principles in the way that he, rather than the Crown, had explained. The third argument advanced by Mr Abdallah was that the Crown’s closing address to the jury involved a material departure from the case that the Crown had presented in opening and throughout the trial. The shift in the Crown’s case was said to relate to the timing and sequence of the shots Mr Abdallah fired at Mr Todorovski. The issue from the outset of the trial was the claim of self-defence and, particularly, Mr Abdallah’s state of mind at the time he fired the six shots. The Court concluded that there was no change to the Crown’s case 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.
in that respect. The Crown relied on a number of matters as justifying the jury being satisfied beyond reasonable doubt that the appellant had not acted in self-defence, regardless of the timing or order of the shots. Those matters included: that the deceased was shot six times; that he was shot three times in the head and neck at or close to point blank range; and that the deceased, whilst armed with a loaded gun in his pocket, was not holding a weapon at the time he was shot and was not moving either to attack Mr Abdallah or to take evasive action. Mr Aballah’s final argument was that the verdict finding him guilty of murder was unreasonable and not supported by the evidence. The Court found that Mr Abdallah’s evidence, in respect of what occurred and what he believed at the time of the shooting, was implausible. Having heard that evidence, it was open to the jury to regard his account as one which could not reasonably have reflected what actually happened and, for that reason, to reject his evidence that he believed shooting the deceased was necessary in selfdefence. The Court concluded that this was not a case in which the jury must have entertained a reasonable doubt as to whether Mr Abdallah had, in fact, acted in selfdefence. In his appeal against sentence, Mr Abdallah complained that the sentencing judge should not have sentenced him on the basis that he intended to kill Mr Todorovski or that the offence involved planning and premeditation. The Court found that, in the factual circumstances of the case, it was open to the sentencing judge to find that Mr Abdallah intended to kill Mr Todorovski and that his forethought in bringing a gun to their meeting, in contemplation of a possible need to use it, was a factor that enhanced the seriousness of the offence. Mr Abdallah also argued that the sentencing judge failed to take the provocation involved in a prior assault upon him into account, and that his sentence was manifestly excessive. The Court concluded as to the former that the sentencing judge had, as he said, taken that factor into account. As to the latter, the Court concluded that this was a serious example of murder and the sentencing judge had not erred in imposing a sentence reflective of that seriousness. The Court dismissed the appeal against conviction and, having granted leave to appeal against sentence, also dismissed that appeal
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.
