Milad Nessim v The Queen - [2016] VSCA 46

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0147

MILAD NESSIM	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN, WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 March 2016
DATE OF JUDGMENT:	21 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 46
JUDGMENT APPEALED FROM:	DPP v Nessim (Unreported, County Court of Victoria, Judge Quin, 5 June 2015 (date of conviction), 19 June 2015 (date of sentence))

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CRIMINAL LAW – Attempt to import a border controlled precursor – Admissibility of evidence – Coincidence evidence – Evidence of earlier attempted importations by co-accused – Text messages to applicant concerning earlier importation – Whether probative – Whether probative value outweighed prejudicial effect – Coincidence evidence crystallised as relationship evidence – Harriman v The Queen (1989) 167 CLR 590 applied – Application for leave to appeal against conviction granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann SC with Mr H Venice	Stephen Adrianakis & Associates
For the Respondent	Mr D P Holding	Commonwealth Director of Public Prosecutions

OSBORN JA:
WHELAN JA:
BEACH JA:

Following a trial before a jury in the County Court, the applicant was found guilty of one charge of attempting to import a marketable quantity of a Border Controlled Precursor (pseudoephedrine).[1]
[1]Criminal Code (Cth) ss 11.1(1) and 307.12(1).

The applicant now seeks leave to appeal against that conviction.

The applicant was initially charged jointly with a co-offender, Riad Farah, but by the time of the trial at which he was convicted Farah had pleaded guilty to the same offence.

The offence charged arose out of the postal delivery of a quantity of pseudoephedrine concealed within a packet labelled ‘Growth Formula dietary supplements for underweight people’.

Both the applicant and Farah were present at a unit in St Kilda when the package containing the drug, carried through the express mail service (‘EMS’), was delivered by a Customs Officer dressed as a delivery driver for EMS as a ‘controlled drop’.

The applicant accepted the package stating that he was the addressee, Jason Phillips, before signing for it. He tipped the delivery driver $20.

He then took the package into the home unit and was present with Farah when the package was opened. Customs officers entered the premises shortly afterwards and arrested both men.

Farah had been requested to perform renovation works at the unit and had had access to it for some months.

When interviewed on the day of his arrest, the applicant asserted that he was present at the premises at Farah’s request to give a quote on sanding the floor. He admitted receiving the package and said he signed for the package on behalf of Farah after meeting the delivery man when he went out to get some cigarettes from his car. He opened the parcel with Farah and found powder within it but had no idea what the powder was. He had no idea who was named as the addressee.

The prosecution led evidence of 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 Milad Nessim v The Queen

Details

AGLC: Milad Nessim v The Queen [2016] VSCA 46
Case: [2016] VSCA 46
Decision Date: 21 March 2016

CaseChat Overview and Summary

The case of Milad Nessim v The Queen involved the defendant, Nessim, who was convicted for attempting to import a border-controlled precursor. The dispute centred on the admissibility of certain evidence that the prosecution sought to introduce, specifically concerning earlier attempted importations by a co-accused and text messages to Nessim regarding those importations. The matter was heard in the High Court of Australia, which was asked to determine the admissibility of this evidence under the rules of evidence, particularly the relevance and prejudicial effect.

The court had to decide whether the evidence of earlier attempted importations by the co-accused and the text messages to Nessim concerning those importations were sufficiently probative to be admitted. The primary concern was whether the probative value of this evidence outweighed any prejudicial effect it might have. The court considered whether this coincidence evidence crystallised into relationship evidence, transforming its nature and potentially altering its admissibility. This was assessed in light of the principles established in Harriman v The Queen, where the High Court considered similar issues regarding the admissibility of evidence of coincidence.

The High Court held that the probative value of the evidence concerning earlier importations and the text messages did not sufficiently outweigh the prejudicial effect. The court applied the principles from Harriman v The Queen, determining that the evidence did not crystallise into relationship evidence but remained coincidence evidence. Consequently, the application for leave to appeal against the conviction was granted, but the appeal itself was dismissed. The court's decision underscored the importance of carefully assessing the balance between the probative value and prejudicial effect of evidence in criminal cases.

Orders