Leeming JA at [1]; McCallum J at [129]; R A Hulme J at [130]
Decision:
1. Leave be refused in respect of ground 4.
2. The appeal be dismissed.
Catchwords:
CRIMINAL LAW - importation of commercial and marketable quantities of border controlled drugs and precursors - indictment containing five charges - whether evidence relevant to counts 1, 2, 3 and 5 properly admitted as tendency or coincidence evidence with respect to count 4 - whether evidence significantly probative - relevance of dissimilarities - whether open to trial judge to deal with coincidence rule and tendency rule together
CRIMINAL LAW - importation of commercial and marketable quantities of border controlled drugs - meaning of "import" in s 300.2 of the Criminal Code 1995 (Cth) - "import" defined to include "deal with the substance in connection with its importation" - commercial quantity of heroin imported in container and held by freight forwarders in Sydney - whether inquiries made by appellant as to fees payable in order to release goods sufficient to amount to dealing - whether inquiries together with assertions of ownership sufficient to amount to dealing
Legislation Cited:
Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) Criminal Code 1995 (Cth), ss 11.1 300.2, 307, 314 Customs Act 1901 (Cth), s 233B Evidence Act 1995 (NSW), ss 94, 95, 97, 98, 100, 101 Evidence Amendment Act 2007 (NSW)
[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.
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AGLC
El-Haddad v The Queen [2015] NSWCCA 10
Case
[2015] NSWCCA 10
Decision Date
CaseChat Overview and Summary
In the High Court of Australia, the case of El-Haddad v The Queen involved the appellant, El-Haddad, who was charged with multiple counts of importing commercial and marketable quantities of border-controlled drugs and precursors. The trial resulted in a conviction on all five counts, and El-Haddad appealed against the conviction on count 4. The legal issues before the Court were whether the evidence adduced in relation to counts 1, 2, 3, and 5 was properly admitted as tendency or coincidence evidence concerning count 4 and whether the evidence was significantly probative. Additionally, the Court examined the meaning of "import" in section 300.2 of the Criminal Code 1995 (Cth), specifically whether inquiries made by the appellant about fees payable to release the goods and assertions of ownership were sufficient to constitute dealing with the substance in connection with its importation.
The Court considered the principles of tendency and coincidence evidence and determined that the evidence in question was relevant and significantly probative. The Court held that it was open to the trial judge to deal with both the tendency rule and the coincidence rule together in assessing the admissibility of the evidence. Furthermore, the Court examined the definition of "import" in the Criminal Code and concluded that the appellant's inquiries about fees payable to release the goods and assertions of ownership were sufficient to amount to dealing with the substance in connection with its importation. Consequently, the Court found that the evidence was properly admitted, and the conviction on count 4 was upheld.
The High Court dismissed the appeal, and the conviction on count 4 of the indictment was affirmed. The Court also noted that the trial judge had not erred in his assessment of the evidence and that the conviction was properly based on the evidence presented. The Court's decision in this case provides guidance on the application of tendency and coincidence evidence in criminal cases and the interpretation of the term "import" in the context of border-controlled drug importation offences.