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Boujaoude v R

Boujaoude v R

Case [2008] NSWCCA 35 29 February 2008

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Reported Decision: 181 A Crim R 281

New South Wales

Court of Criminal Appeal

CITATION: BOUJAOUDE, Elia Elrob v R [2008] NSWCCA 35
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 October 2007

JUDGMENT DATE:
29 February 2008

JUDGMENT OF: Giles JA at 1; Hislop J at 58; Price J at 59

DECISION: (1) Time for filing the notice of appeal be extended to 15 June 2007; (2) Appeal allowed and conviction quashed; (3) Substitute a conviction for the offence of supplying a prohibited drug; (4) Remit the proceedings to the District Court for sentencing.

CATCHWORDS: Indictment - charge of supplying a prohibited drug - 279 grams of heroin - at the time less than the commercial quantity - Act thereafter amended so that was more than the commercial quantity - indictment presented that supplied not less than the commercial quantity "namely 279 grams of heroin" - verdict of guilty - whether indictment charged offence not known to the law - charged known offence - 279 grams was a particular - did not make indictment valid - conviction quashed but conviction supplying prohibited drug substituted.

CATEGORY: Principal judgment

CASES CITED: Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364;
Chanthaboury v R [2007] NSWCCA 229;
Director of Public Prosecutions v Bhagwan [1972] AC 60, HL;
Director of Public Prosecutions v Parmenter (1992) 1 AC 699;
Griffiths v The Queen (1977) 137 CLR 293;
Johnson v Miller (1937) 59 CLR 467;
Kahatapitiye v The Queen [2004] WASCA 189; (2004) 146 A Crim R 542;
Knaggs v Director of Public Prosecutions [2007] NSWCA 83;
John L Pty Ltd v Attorney-General for New South Wales (1987) 163 CLR 508;
Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303;
ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153;
McConnell Dowell Contractors (Aust) Pty Ltd v
Environment Protection Authority (No 2) (2002) NSWCCA 24;
Preston v Donohoe (1906) 3 CLR 1089;
R v Aldridge (1993) 67 A Crim R 371;
R v Ayres (1984) 1 AC 447;
R v Browne (1987) 30 A Crim R 278;
R v Cameron (1983) 2 NSWLR 66;
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 13;
R v Mai (1992) 26 NSWLR 371;
R v MAJW [2007] NSWCCA 145;
R v Molyneux (1980) 72 Cr App R 111;
R v Puciarello, CCA, 4 June 1990 unreported;
Rockdale Beef Pty Ltd v Industrial Relations Commission [2007] NSWCA 128;
S v The Queen (1989) 168 CLR 266;
Stanton v Abernathy (1990) 19 NSWLR 656;
Taylor v Environment Protection authority [2000] NSWCCA 71

PARTIES: Elia Elrob Boujaoude - Appellant
The Crown - Respondent

FILE NUMBER(S): CCA 2007/3299

COUNSEL: A J Bellanto QC & C Nash - Appellant
J A Girdham - Respondent

SOLICITORS: Ford Criminal Lawyers - Appellant
S Kavanagh,…

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 Boujaoude v R

Details

AGLC: Boujaoude v R [2008] NSWCCA 35
Case: [2008] NSWCCA 35
Decision Date: 29 February 2008

CaseChat Overview and Summary

The case of Boujaoude v R involved a defendant charged with the supply of a prohibited drug, specifically 279 grams of heroin. The prosecution argued that at the time of the alleged offence, the amount of heroin supplied was less than the commercial quantity, but subsequent amendments to the Act resulted in the quantity exceeding the commercial threshold. The indictment charged that the defendant supplied not less than the commercial quantity, stating "namely 279 grams of heroin." The defendant was found guilty, but the issue arose as to whether the indictment correctly charged an offence known to the law. The defence argued that while the charge was of a known offence, the specific quantity of 279 grams did not render the indictment valid under the amended Act. The court had to determine if the indictment correctly charged the offence and if the conviction could stand.

The legal issues before the court included whether the indictment accurately described the offence as it stood under the law at the time of the alleged offence and if the quantity specified in the indictment was sufficient to sustain a conviction under the subsequent legislative amendments. The court needed to consider the principles of statutory interpretation and the requirements for a valid indictment. It had to ascertain whether the indictment correctly identified the offence and whether the quantity specified was a material element of the offence as defined by law at the relevant time.

The court held that while the indictment did charge an offence known to the law, the specific quantity of 279 grams did not align with the definition of the commercial quantity as it stood post-amendment. Consequently, the court quashed the conviction for the charge as stated in the indictment but substituted a conviction for the supply of a prohibited drug, which was a known offence at the time. The reasoning was that although the quantity was not precisely described in a manner consistent with the post-amendment definition, the offence of supplying a prohibited drug was validly charged and proven.

The final orders of the court were to quash the conviction for the specific charge as outlined in the indictment and to substitute a conviction for the supply of a prohibited drug. The conviction was based on the broader offence, which was acknowledged to be known to the law at the relevant time, ensuring that the defendant was not prejudiced by the technical inaccuracy in the indictment's description of the quantity.

Orders