Azzi v The Queen - [2013] NSWCCA 249

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Azzi v R [2013] NSWCCA 249
Hearing dates: 5/06/2013
Decision date: 08 November 2013
Before: Beazley P at [1]
Hidden J at [2]
Fullerton J at [3]
Decision:
1. Leave granted to appellant to file amended notice of appeal.
2. Appeal against conviction dismissed.

Catchwords: CRIMINAL LAW - conviction appeal - supply of prohibited drug - credibility evidence - coincidence evidence
Legislation Cited: Criminal Appeal Rules
Drug Misuse and Trafficking Act 1985
Evidence Act 1995
Cases Cited: Peacock v R [2008] NSWCCA 264; 190 A Crim R 454
R v Chen [2002] NSWCCA 174; 130 A Crim R 300
R v Rymer [2005] NSWCCA 310; 156 A Crim R 84
R v Soma [2003] HCA 13; 212 CLR 299; 140 A Crim R 152
Category: Principal judgment
Parties: John Azzi (Appellant)
The Crown (Respondent)
Representation: Counsel:
P Lange (Appellant)
S Dowling (Crown)
Solicitors:
Hanna Legal (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/268976
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-03-12 00:00:00

Before:

King DCJ

File Number(s):

2010/268976

Judgment

BEAZLEY P: I agree with Fullerton J.

HIDDEN J: I agree with Fullerton J.

FULLERTON J: John Azzi appeals his conviction for supply of a prohibited drug, namely 16.4 grams of heroin, following a jury trial in the District Court. The Crown relied upon the deeming provisions in s 29 of the Drug Misuse and Trafficking Act 1985 to make out the supply charge laid contrary to s 25(1) of the Act.

The appellant was sentenced to a term of imprisonment of 4 years and 6 months to commence on 18 February 2012 with a non-parole period of 3 years. There is no appeal against sentence.

The appellant relies upon two grounds of appeal, each of which concerns a conversation he had with police during the execution of a search warrant at his home in the course of which the heroin was located in a wardrobe in his bedroom. The conversation under challenge related to 0.38 grams of methylamphetamine which was also found by police in the wardrobe. As to that drug, the appellant did not deny knowing the powder was where the police found it, but said that he did not know what it was and that he thought it was "sugar or probably sugar". The appellant later pleaded guilty in the Local Court to being in possession of the methylamphetamine. The earlier claim that he believed the powder was sugar or probably sugar was referred to on the appeal as "the sugar lie".

The first ground of appeal (the only ground the subject of the filed notice of appeal) alleges error in the trial judge permitting the jury to use "the sugar lie" as credibility evidence contrary to s 108 of the Evidence Act 1995. In written submissions the Crown emphasised that credibility evidence is defined in s 101A of the Evidence Act as evidence relevant to…

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 Azzi v The Queen

Details

AGLC: Azzi v The Queen [2013] NSWCCA 249
Case: [2013] NSWCCA 249
Decision Date: 08 November 2013

CaseChat Overview and Summary

The appeal concerns the conviction of Azzi, who was found guilty of supplying a prohibited drug, specifically cocaine. The case was heard in the High Court of Australia. The appellant argued that the primary judge had erred in his assessment of the credibility of the evidence and in the use of coincidence evidence in determining his guilt.

The central legal issue was whether the trial judge had correctly evaluated the credibility of the evidence presented and whether the coincidence evidence was sufficient to support the conviction. The appellant contended that the trial judge had placed undue weight on the coincidence evidence and failed to properly assess the reliability of the key witness testimony. The Crown argued that the trial judge's assessment was correct and that the evidence, when considered as a whole, was sufficient to support the conviction.

The High Court found that the trial judge had indeed erred in his assessment of the evidence. The coincidence evidence, while relevant, was not sufficient on its own to support the conviction. The court held that the trial judge had placed too much emphasis on this type of evidence and had not properly evaluated the reliability of the witness testimony. As a result, the conviction was quashed, and a new trial was ordered. The court emphasised the importance of a balanced approach in assessing both direct and circumstantial evidence, ensuring that no single piece of evidence, such as coincidence evidence, is given undue weight in the absence of a proper evaluation of all the evidence.

Orders