Boutros v The Queen - [2015] NSWCCA 171

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Boutros v R [2015] NSWCCA 171
Hearing dates: 18 March 2015
Decision date: 29 June 2015
Before: Simpson JA at [1]; Rothman J at [68]; Bellew J at [69]
Decision:
Appeal against conviction dismissed.

Catchwords:
APPEAL - conviction - attempt to possess a marketable quantity of a border controlled drug, cocaine - Criminal Code (Cth), s 11.1 and s 307.6 - whether trial judge left to the jury a factual basis for conviction different to that alleged by Crown - no change of direction in Crown case - ground based on a false premise
APPEAL - conviction - whether verdict unreasonable and not supported by evidence - open to the jury to convict the appellant - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 7
Criminal Code (Cth), s 11.1, s 307.6
Evidence Act 1995 (NSW), s 184, s 191
Surveillance Devices Act 2007 (NSW)
Telecommunications (Interception and Access) Act 1979 (Cth)
Cases Cited: Black v The Queen [1993] HCA 71; 179 CLR 44
Category: Principal judgment
Parties: Charbel Boutros (Appellant)
Regina (Respondent)
Representation:
Counsel:
G James QC/B Clark (Appellant)
T Anderson (Respondent)
Solicitors:
Katsoolis & Co (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2012/237828
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

07 March 2014

Before:

Berman DCJ

File Number(s):

2012/237828

Judgment

SIMPSON JA: Section 11.1 of the Criminal Code (Cth) (“the Code”) relevantly provides:

“Attempt
(1)  A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
(2)  For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(3)  For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
…
(7)  It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).”

Section 307.6 of the Code provides;

“307.6  Possessing marketable quantities of unlawfully imported border controlled drugs or border controlled plants
(1)  A person commits an offence if:
(a)  the person possesses a substance; and
(b)  the substance was unlawfully imported; and
(c)  the substance is a border controlled drug or border controlled plant; and
(d)  the quantity possessed is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2)  Absolute liability applies to paragraphs (1)(b) and (d).
(3)  The fault element for paragraph (1)(c) is recklessness.
(4)  Subsection (1) does not apply if the person proves that he or she neither intended, nor believed…

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 Boutros v The Queen

Details

AGLC: Boutros v The Queen [2015] NSWCCA 171
Case: [2015] NSWCCA 171
Decision Date: 29 June 2015

CaseChat Overview and Summary

The case of Boutros v The Queen involved an appeal against the appellant's conviction for attempting to possess a marketable quantity of cocaine. The appellant was tried and convicted in the Supreme Court of Victoria, and the appeal was brought before the Court of Appeal. The primary issue before the court was whether the trial judge had left to the jury a factual basis for conviction that differed from that alleged by the Crown, and whether the conviction was unreasonable and not supported by the evidence.

The court examined the grounds of appeal, specifically focusing on whether the trial judge had directed the jury to consider a factual basis for conviction different to that alleged by the Crown. The court found that the trial judge's direction to the jury did not constitute a departure from the Crown's case, as the ground of appeal was based on a false premise. The court further found that the jury was open to convict the appellant based on the evidence presented at trial. The court concluded that the conviction was not unreasonable and was supported by the evidence, and therefore dismissed the appeal.

In reaching its decision, the court carefully considered the evidence presented during the trial, the trial judge's directions to the jury, and the arguments presented by both parties. The court found that the jury was properly directed and that the conviction was based on sufficient evidence. The court also noted that the appeal was not successful on the grounds that it was based on a false premise. As a result, the appeal was dismissed and the conviction was upheld.

Orders