Abouhaidar v The The Queen - [2022] NSWCCA 57

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Abouhaidar v R [2022] NSWCCA 57
Hearing dates: 7 February 2022
Decision date: 23 March 2022
Before: Leeming JA at [1];
Rothman J at [86];
Harrison J at [87].
Decision:
Application for an extension of time within which to apply for leave to appeal against conviction refused.

Catchwords:
CRIMINAL LAW – appeal against conviction – attempting to import commercial quantity of border controlled drug – applicant involved in seeking to possess two packages carried by air from Netherlands to Australia – applicant claimed he believed packages contained polymer for making counterfeit banknotes – applicant had previous counterfeiting conviction – applicant when arrested possessed counterfeit banknotes – whether conviction unreasonable – only element in content was knowledge that packages contained illicit drugs – surveillance evidence, text messages and intercepted telephone calls supported Crown case – applicant cross-examined before jury – applicant accepted aspects of his case were untrue – open to jury to convict

Legislation Cited:
Crimes (Currency) Act 1981 (Cth), s 9
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Code (Cth), ss 11.1, 300.6, 307.5
Criminal Procedure Act 1986 (NSW), s 29
Judiciary Act 1903 (Cth), s 68

Cases Cited:
Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Lin v R [2019] NSWCCA 171
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Nader v R [2018] NSWCCA 256
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: George Abouhaidar (Applicant)
Regina (Respondent)
Representation:
Counsel:
H Maarraoui (Applicant)
J Single; S Love (Crown)
Solicitors:
Hope Criminal Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2015/00362457
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

5 July 2017

Before:

Craigie SC DCJ

File Number(s):

2015/00362457

Judgment

LEEMING JA: The applicant, Mr George Abouhaidar, stood trial in the District Court constituted by his Honour Craigie SC DCJ and a jury on one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely, 3,4-methylenedioxymethamphetamine or “MDMA”, contrary to ss 11.1 and 307.5(1) of the Criminal Code (Cth). The applicant was tried jointly with Mr Moses Nader, who was charged with the same importation offence on a joint indictment. The trial occupied parts or all of some 18 days in June 2017. Both men were found guilty.
The applicant also pleaded guilty to one charge of knowingly having in his possession counterfeit money, namely 204 counterfeit $50 notes, contrary to s 9(1) of the Crimes (Currency) Act 1981 (Cth).
Later in 2017, the District Court imposed a sentence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abouhaidar v The The Queen

Details

AGLC: Abouhaidar v The The Queen [2022] NSWCCA 57
Case: [2022] NSWCCA 57
Decision Date: 23 March 2022

CaseChat Overview and Summary

The appeal before the court was from the applicant, who sought to overturn his conviction for attempting to import a commercial quantity of a border controlled drug. The case involved the applicant's involvement in seeking to possess two packages carried by air from the Netherlands to Australia, which were later found to contain illicit drugs. The applicant claimed that he believed the packages contained polymer for making counterfeit banknotes. He had a prior conviction for counterfeiting and was found in possession of counterfeit banknotes at the time of his arrest. The central issue before the court was whether the conviction was unreasonable, particularly as the only element in question was the applicant's knowledge that the packages contained illicit drugs.

The court examined the evidence presented, including surveillance footage, text messages, and intercepted telephone calls, which supported the Crown's case. The applicant was cross-examined before the jury and admitted that certain aspects of his defence were untrue. The court concluded that it was open to the jury to convict based on the evidence and the applicant's admissions. The court found that the applicant's previous convictions and possession of counterfeit banknotes at the time of arrest provided context that supported the inference of knowledge about the nature of the packages.

The court held that the applicant's conviction was not unreasonable. The evidence, including his prior history and the contents found in his possession, provided a strong basis for the jury's decision. The court confirmed that the jury was entitled to consider the applicant's credibility and the overall circumstances of the case in reaching their verdict. The appeal was dismissed, and the original conviction was upheld.

The court ordered that the appeal be dismissed and that the conviction and sentence of the original court be affirmed.

Orders