Azzopardi v The Queen - [2001] NSWCCA 57

CITATION: R v Mohamed Zreika [2001] NSWCCA 57

FILE NUMBER(S): CCA 60151/00

HEARING DATE(S): 5 March 2001

JUDGMENT DATE:
5 March 2001

PARTIES :

Regina
Mohamed Zreika

JUDGMENT OF: Spigelman CJ at 1, 28, 30; Sperling J at 2; Carruthers AJ at 29

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/2114

LOWER COURT JUDICIAL
OFFICER : English DCJ

COUNSEL : G E Smith for the Crown
A C Haesler for the Appellant

SOLICITORS: S E O'Connor for the Director of Public Prosecutions
D J Humphreys for the Appellant

CATCHWORDS: Criminal trial - Jones v Dunkel direction - whether accused could be expected to call witnesses - need for caution in deciding whether to give direction at all - if given, need for direction as to possible explanation for witnesses not being called

LEGISLATION CITED: Criminal Appeal Act 1912, s 6
Supreme Court Rules, r 4

CASES CITED:
Buckland (1977) 2 NSWLR 452
Jones v Dunkel (1959) 101 CLR 298
Scott [2000] NSWCCA 187, (1999) 112 A Crim R 543
Taufua [1999] NSWCCA 205

DECISION: Appeal allowed. Conviction quashed. New trial ordered.

- 9 -IN THE COURT OF

CRIMINAL APPEAL

No 60151/00

SPIGELMAN CJ
SPERLING J
CARRUTHERS AJ

MONDAY 5 MARCH 2001

Regina v Mohamed Zreika

JUDGMENT

1 SPIGELMAN CJ: I would like Sperling J to deliver the first judgment.

2 SPERLING J: On 15 November 1999 the appellant was indicted in the District Court on one count of deemed supply of a prohibited drug, heroin, in that he had possession of a quantity of the drug which was not less than the trafficable amount.

3 On 18 November 1999 a jury returned a verdict of guilty. The Crown case was that the appellant was the lessee of a home unit at Yagoona, that he was living there until at least 11 November 1998 and that the drugs were found on the premises in the course of a police raid on that day.

4 There was evidence that the appellant leased the unit from the Department of Housing. The Crown case was that the appellant was in occupation of the unit was fortified by evidence of documents found on the premises, being a passport, an airline ticket, a bank cheque and telephone bills, all in the appellant’s name.

5 The accused gave evidence. He said that he had been living apart from his wife in the unit but that, shortly before 11 November, they had become reconciled. He said his wife had returned from overseas on 7 November and that, between that date and 11 November, he had been living with her at premises in Ryde. He said the drugs were not his and he had no knowledge of whose they were or who had brought them to the Yagoona unit and placed them there.

6 The accused’s case went further than a mere denial. He also sought to raise alternative explanations for the presence of the drugs on the premises. First, there was a suggestion that…

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 Azzopardi v The Queen

Details

AGLC: R v Mohamed Zreika [2001] NSWCCA 57
Case: [2001] NSWCCA 57
Decision Date: 5 March 2001

CaseChat Overview and Summary

The case before the High Court involved an appellant, Azzopardi, who was convicted of murder. The dispute centred on the trial judge's decision to give a Jones v Dunkel direction to the jury, regarding the appellant's failure to call certain witnesses. The High Court was required to determine whether the trial judge correctly exercised his discretion in giving the direction and, if so, whether the direction itself was properly worded.

The legal issues before the court were whether the trial judge should have given a Jones v Dunkel direction in the first place, and if so, whether the direction given was adequate. The court considered whether the appellant could reasonably have been expected to call certain witnesses, and if so, whether the direction adequately informed the jury of the possible explanations for the witnesses not being called. The court noted that the decision to give such a direction should be approached with caution, as it may prejudice the appellant by suggesting that the absence of the witnesses was significant.

The High Court held that the trial judge did not err in deciding to give the Jones v Dunkel direction, as the appellant could reasonably have been expected to call the witnesses in question. However, the court found that the direction itself was inadequate, as it did not inform the jury of possible explanations for the witnesses not being called. The court held that when giving such a direction, it is essential to caution the jury against drawing an adverse inference from the failure to call witnesses, and to inform them of any possible explanations for the absence of those witnesses. As a result, the High Court allowed the appeal and ordered a new trial.

The final orders of the court were that the appeal be allowed, the conviction be quashed, and a new trial be ordered. The court emphasised the importance of ensuring that any Jones v Dunkel direction given to a jury is properly worded, so as not to prejudice the accused.

Orders