Fattal v Regina - [2006] NSWCCA 359

CITATION: Fattal v Regina [2006] NSWCCA 359

HEARING DATE(S): 24 October 2006

JUDGMENT DATE:
17 November 2006

JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 2; Hislop J at 51

DECISION: Appeal against conviction dismissed

LEGISLATION CITED: Evidence Act 1995 (NSW)

CASES CITED: Tripodi v The Queen (1961) 104 CLR 1
Ahern v The Queen (1988) 165 CLR 87
M v The Queen (2002) 213 CLR 606
MFA v The Queen (2002) 213 CLR 606

PARTIES: Toufic Fattal
Regina

FILE NUMBER(S): CCA 2006/1524

COUNSEL: J. R. Dwyer - Crown
A. Francis - Appellant

SOLICITORS: S. Kavanagh - Crown
K. Kyriacou - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0292

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

2006/1524

McCLELLAN CJ at CL
SULLY J
HISLOP J
17 November 2006

Toufic FATTAL v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Sully J.

2 SULLY J:

Introduction

3 In April 2005 the appellant, Mr. Fattal, stood trial in the District Court at Sydney before her Honour Judge Morgan and a jury. He was so tried upon an indictment framed as follows:

“For that he, on 10 August 2003 at Rockdale in the State of New South Wales did supply an amount of a prohibited drug, that is 3.4 methylenedioxymethalamphetamine being a quantity not less than a large commercial quantity of that drug.”

4 The jury found the appellant guilty of that charge. He was thereupon convicted and sentenced to a substantial term of imprisonment. He now appeals against his conviction. He does not seek leave to appeal against his sentence. Three grounds of appeal were argued. They will be dealt with later herein.

An Overview of the Facts

5 The Crown’s written summary of the trial contains an overview which it is convenient to reproduce:

“In August 2002, police investigating the interstate supply of prohibited drugs learnt from (lawfully) intercepted telephone calls that Brad Forrest, acting on behalf of Jim Nabhan and Chris Kostopoulos, was travelling from Coolangatta to Sydney on 10 August 2002 to obtain ecstasy from Michael Elabed and others. In particular, that a price of $18 per tablet had been agreed upon and that Forrest would be carrying $66,000 in cash.

On 10 August 2002, Forrest arrived at Sydney Airport and was met by Elabed and driven to a house in Rockdale. At the house, Forrest and Elabed met up with Dirani and another man, Goran Nikolovski. Nikolovski produced an ecstasy tablet and the men tested it. Forrest then handed over $66,000 to Nikolovski, who shortly afterwards left the premises. The appellant then arrived.

About one hour later, Nikolovski returned with a large quantity of ecstasy (approximately 3 kilograms or 9,000 tablets) in plastic bags. Forrest took possession of the tablets and was driven by Elabed to the Airport Hilton. There, Forrest took a room for the night. He was joined in his room a short time later by the appellant.

The money Forrest provided to Nikolovski ($66,000) was part-payment for the…

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 Fattal v Regina

Details

AGLC: Fattal v Regina [2006] NSWCCA 359
Case: [2006] NSWCCA 359
Decision Date: 17 November 2006

CaseChat Overview and Summary

The appeal in Fattal v Regina was heard by the NSW Court of Criminal Appeal against the conviction of Toufic Fattal, who was found guilty by the District Court of supplying a large commercial quantity of ecstasy. The appellant argued three grounds of appeal against his conviction. The first ground argued that the trial judge erred in her summing up of the nature of the alleged joint criminal enterprise, extending it to include conduct after the supply to Forrest was complete, and leaving a different case of supply than that alleged by the Crown. The second ground argued that the trial judge erred in admitting evidence of representations of others as proof of the appellant's involvement in the joint criminal enterprise. The third ground argued that the verdict was unreasonable, and that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty as charged. The Court found that there was no such contrast or contradiction between the Crown case as actually presented by the Crown to the jury, and the Crown case as actually left to the jury by the trial judge. The Court also found that the evidence of the telephone conversations was significantly probative of the joint criminal enterprise, and that it was open to the jury to find that it had been filled by the evidence of relevant prior associations, relevant presence, and relevant subsequent conduct. Finally, the Court found that the Crown case, reasonably assessed overall, was a convincing one, and that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty as charged. The appeal against conviction was dismissed.

Orders