HEADNOTE
[This headnote is not to be read as part of the judgment]
Richard Bargashoun (the applicant) was charged on indictment with three counts: shoot with intent to murder contrary to s 29 of the Crimes Act 1900 (NSW) (count 1); in the alternative, discharge a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act (count 2); and robbery with infliction of grievous bodily harm contrary to s 98 of the Crimes Act (count 3). He pleaded guilty to counts 2 and 3 and was convicted after trial by jury of count 1, by majority of 11, before Colefax SC DCJ (the trial judge) on 25 May 2015.
The applicant was sentenced to a term of 20 years' imprisonment with a non-parole period of 15 years' imprisonment, commencing on 1 July 2013.
The applicant, in company with a co-offender, sought to rob the victim of the takings from a hotel. The applicant used a .22 calibre hand gun to shoot the victim twice in the legs. When this was insufficient to get the victim to give up the money, he shot him at close range at least three more times in the torso (upper right chest, abdomen and right hip). There were two factual issues: whether two marks on the victim's torso were gunshot wounds or surgical incisions and whether he had shot the victim twice more after the victim had given up the money.
The principal issue at trial was whether the applicant intended to murder the victim when he fired the shots (required for proof of count 1) or whether his intention was only to cause grievous bodily harm (as he had admitted by his plea to count 2).
By notice of appeal filed 23 June 2022, the applicant sought an extension of time for leave to appeal against his conviction on three grounds: that the verdict was unreasonable; that the trial judge erred in directing the jury that the Crown was not required to prove any individual facts beyond reasonable doubt; and that the trial judge erred in failing to give a specific unanimity direction. The latter two grounds were first raised on 30 January 2023, a week before the hearing of the appeal.
The Court held (Adamson JA, N Adams J and Weinstein J agreeing), extending time for filing the notice of appeal, granting leave but dismissing the appeal:
(1) The verdict was not unreasonable as it was open to the jury to infer that the applicant intended to kill the victim after firing the first two shots (which had been directed to his lower body) because the subsequent shots were fired, at very close range, at the victim's torso.
(2) Because of the number of shots fired, it was not necessary to resolve whether or not the two marks below the victim's right nipple area were gunshot wounds or surgical incisions or whether the last two shots were fired after the victim had relinquished the money.
(3) The trial judge did not err in directing the jury about the standard of proof; nor was a Shepherd direction required.
(4) The trial judge was not required to give a unanimity direction since the jury must have been unanimous that the requisite intention had been established by the time the last shot was fired, if not before.
(5) Applications of this nature should only be made where there are real prospects of advancing the applicant's interests.
(6) The extension of time and leave to appeal were granted, notwithstanding the lack of merit of the grounds, for the purpose of bringing the matter to finality.