Elsleiman v The Queen - [2015] NSWCCA 192

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elsleiman v R [2015] NSWCCA 192
Hearing dates: 22 May 2015
Decision date: 22 July 2015
Before: Macfarlan JA at [1];
Johnson J at [74];
Button J at [75]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - drug offences – attempt to possess substance reasonably suspected of being unlawfully imported – circumstantial case – appeal against conviction – whether jury verdict unreasonable or cannot be supported having regard to the evidence – s 6 Criminal Appeal Act 1912 – appeal dismissed
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5(1)(6)
Criminal Code 1995 (Cth), ss 5.2, 5.3, 11.1(1), 307.9, 307.9(1), 307.9(1)(c), 307.11
Cases Cited: Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521
Lau v R [2014] NSWCCA 179
M v The Queen [1994] HCA 63; 181 CLR 487
R v Hillier [2007] HCA 13; 228 CLR 618
SKA v The Queen [2011] HCA 13; 243 CLR 400
Wood v R [2012] NSWCCA 21; 84 NSWLR 581
Category: Principal judgment
Parties: Gabriel Elsleiman (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Smith (Applicant)
P McGuire (Respondent)
Solicitors:
McGirr Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2012/114537
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

New South Wales

Date of Decision:

13 September 2013

Before:

Flannery DCJ

File Number(s):

2012/114537

Judgment

MACFARLAN JA: Following a plea of not guilty and a 12 day jury trial in 2013 in the District Court, the applicant was convicted of the following offence under subsections 307.9(1) and 11.1(1) of the Criminal Code 1995 (Cth):

“On or about 11 April 2012 at Sydney in the State of New South Wales, [Gabriel Elsleiman] did attempt to possess a substance, being a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely cocaine, and the quantity of the substance being a marketable quantity”.

The offence arose out of the intended shipment from the United States to the applicant’s motor vehicle workshop in South Strathfield, Sydney, of a motor vehicle engine containing a pure net weight of 1,720.2 grams of cocaine secreted in seven canisters. Authorities in the United States seized the consignment and despatched it to Australia after removing the cocaine. Australian Federal Police (“AFP”) Agents then substituted an inert white powder in the canisters, reconstructed the consignment and delivered it to the workshop. The applicant removed the canisters from the engine and delivered them to Mohamed Metleg on whose instructions he was acting. The applicant’s case at the trial was that he had, at most, a suspicion that the engine, and the canisters in it, contained illegal substances. The issue at the trial was whether the Crown had proved beyond reasonable doubt that the applicant had the requisite intention or knowledge applicable to the offence. The Crown presented a circumstantial case to which the applicant responded by giving evidence.
The applicant…

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 Elsleiman v The Queen

Details

AGLC: Elsleiman v The Queen [2015] NSWCCA 192
Case: [2015] NSWCCA 192
Decision Date: 22 July 2015

CaseChat Overview and Summary

The appellant, Elsleiman, was convicted in the Supreme Court of Victoria for attempting to possess a substance reasonably suspected of being unlawfully imported. The appeal to the Court of Appeal of the Supreme Court of Victoria sought to overturn this conviction based on the argument that the jury's verdict was unreasonable or could not be supported by the evidence. The central issue before the Court of Appeal was whether the jury's verdict was beyond doubt or not reasonably open on the evidence, under section 6 of the Criminal Appeal Act 1912.

The Court of Appeal examined the evidence presented during the trial, which included circumstantial evidence regarding the appellant's involvement in the attempted possession of the unlawful substance. The court highlighted that the jury was entitled to consider all the evidence presented and determine the facts before them. The court found that the jury's verdict was open to them based on the evidence and that there was no basis to conclude that the jury's verdict was unreasonable. The court underscored that the appeal court's role was not to reassess the weight of the evidence or substitute its judgment for that of the jury.

In light of the evidence and the principles of criminal appeal law, the Court of Appeal dismissed the appeal against conviction. The court held that the jury's verdict was reasonably open on the evidence, and there was no ground to interfere with the conviction. Consequently, the original conviction of the appellant was upheld.

Orders