Nassr v R [2015] NSWCCA 284

Nassr v R [2015] NSWCCA 284

Conviction on count 1 was quashed and a judgment of acquittal directed because the element that the serious indictable offence was committed 'in the dwelling-house' was not established by the agreed facts or evidence, resulting in a miscarriage of justice.

Parties
Applicant: Edward Nassr; Crown: Regina
Jurisdiction
Australia
Judgment Date
17 November 2015
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal allowed; conviction quashed; acquittal entered on count 1; aggregate sentence set aside; matter remitted for sentencing on remaining count; procedural orders made.
Legal Topics
Leave to Appeal Out of Time, Miscarriage of Justice, Breaking and Entering, Aggravated Offence, Elements of Offence
Criminal Law Leave to Appeal Out of Time Miscarriage of Justice Breaking and Entering Aggravated Offence Elements of Offence

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Parties

Edward Nassr

Applicant

Regina

Crown

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the conviction for breaking and entering and committing a serious indictable offence 'therein' could be supported on the admitted facts
  2. 2 Whether a miscarriage of justice occurred due to conviction based on agreed facts that did not disclose all elements of the offence

Ratio Decidendi

Conviction on count 1 was quashed and a judgment of acquittal directed because the element that the serious indictable offence was committed 'in the dwelling-house' was not established by the agreed facts or evidence, resulting in a miscarriage of justice.

Court Disposition

Appeal allowed; conviction quashed; acquittal entered on count 1; aggregate sentence set aside; matter remitted for sentencing on remaining count; procedural orders made.

Orders

  • Amend order 2 made on 4 November 2015 to read: '2. Allow the appeal in relation to the applicant's conviction on count 1, quash that conviction and direct a judgment of acquittal be entered in relation to that count.'
  • Revoke order 3 made on 4 November 2015.