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Christian v The Queen

Christian v The Queen

Case [2013] NSWCCA 98 8 May 2013

Drugs

Possession

Admissibility of Evidence

Tendency Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Christian v R [2013] NSWCCA 98
Hearing dates: 18 April 2013
Decision date: 08 May 2013
Before: Hoeben CJ at CL at [1]
Davies J at [2]
Adamson J at [77]
Decision:
1. Appeal allowed
2. Quash the conviction of the Appellant
3. Order a new trial

Catchwords: CRIMINAL LAW - drugs - possession -evidence of earlier possession of similar drug - admissibility - basis for admissibility - whether tendency evidence - evidence wrongly admitted.
EVIDENCE - admissibility - relevance - whether evidence admissible other than as tendency evidence - no examination of prejudice.
Legislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules
Drugs Misuse and Trafficking Act 1985
Evidence Act 1995
Cases Cited: Baini v The Queen [2012] HCA 59; (2012) 87 ALJR 180
Jackwitz v R; Franklin v R [2006] NSWCCA 419
KBT v The Queen (1997) 191 CLR 417
R v Amanatidis [2001] NSWCCA 400
R v Bazley (Court of Criminal Appeal, 23 March 1989, Unreported)
R v Burns (Court of Criminal Appeal, 19 August 1988, Unreported)
R v Filippetti (1978) 13 A Crim R 335
R v Matthews [2004] NSWCCA 259
R v Ngatikaura [2006] NSWCCA 161; (2006) 161 A Crim R 329
R v Quach [2002] NSWCCA 519
R v Vincent Yiu Chen Fung [2002] NSWCCA 479; (2002) 136 A Crim R 95
Category: Principal judgment
Parties: Craig Anthony Christian (Appellant)
Crown (Respondent)
Representation: Counsel:
H Dhanji SC (Applicant)
R Herps (Respondent)
Solicitors:
William O'Brien & Ross Hudson Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/205417
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-11-25 00:00:00

Before:

Norrish DCJ

File Number(s):

2009/205417

Judgment

HOEBEN CJ AT CL: I agree with Davies J.

DAVIES J: The Appellant was found guilty by a jury on 25 November 2011 on a charge of having supplied a prohibited drug namely 1,4- Butanediol. The supply was a deemed supply pursuant to s 29 of the Drugs Misuse and Trafficking Act 1985 because the quantity of the drug (84.4g) was more than a trafficable quantity. The trafficable quantity is 30g.

The Appellant appeals on the following grounds:

Ground 1: A miscarriage of justice was occasioned by the admission into evidence of the applicant's possession at the time of his arrest of a small brown bottle found to contain 1,4-Butanediol ('the small brown bottle');

Ground 2: A miscarriage of justice was occasioned by:

a. the reliance by the Crown as part of its case on the applicant's possession at the time of his arrest of the small brown bottle;

b. the absence of adequate directions as to how the evidence of the applicant's possession of the small brown bottle might properly be used.

Ground 3: The verdict of the jury is unreasonable or cannot be supported having regard to the evidence.

The facts

The Appellant is a boxing trainer and manager conducting the bulk of his work activities in Perth where he lives.

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 Christian v The Queen

Details

AGLC: Christian v The Queen [2013] NSWCCA 98
Case: [2013] NSWCCA 98
Decision Date: 08 May 2013

CaseChat Overview and Summary

Christian was charged with possessing a prohibited drug. The central issue before the court was the admissibility of evidence of earlier possession of a similar drug. The court needed to determine whether this evidence could be admitted and, if so, on what basis. It also had to consider whether the evidence was correctly admitted and whether any potential prejudice had been adequately examined.

The court found that the evidence of earlier possession was not properly admitted as tendency evidence. Instead, the prosecution needed to show that the evidence was admissible on some other basis. The court concluded that the evidence was not relevant except as tendency evidence, and since no examination of potential prejudice had been conducted, the evidence should not have been admitted.

As a result of the court's decision, the evidence of earlier possession of a similar drug was deemed inadmissible. The court ordered that this evidence be excluded from consideration in the trial, potentially impacting the prosecution's case against Christian. The case underscores the importance of correctly identifying the basis for admissibility of evidence and conducting a proper assessment of any prejudicial effects.

Orders