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Mortada v R

Mortada v R

Case [2014] NSWCCA 36 24 March 2014

Appeal

Criminal Liability

Miscarriage of Justice

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mortada v R [2014] NSWCCA 36
Hearing dates: 4 and 16 December 2013
Decision date: 24 March 2014
Before: Leeming JA; Hall J; Schmidt J
Decision:
(1) Extension of time to appeal granted.
(2) Leave under Rule 4 granted.
(3) Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against conviction - failure to give propensity direction contrary to ruling when evidence admitted - whether deliberate forensic decision not to seek direction - whether guilty verdict inevitable and no substantial miscarriage of justice - proviso applied to dismiss appeal
Legislation Cited: Crimes Act 1900 (NSW), s 193B
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Appeal Rules, r 4
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29, Sch 1
Cases Cited: Baini v The Queen [2012] HCA 59; 246 CLR 469
Belhaven and Stenton Peerage (1875) 1 AC 278
BRS v The Queen (1997) 191 CLR 275
Burrell v R [2009] NSWCCA 193
Cesan v The Queen [2008] HCA 52; 236 CLR 358
Dearman v Dearman (1908) 7 CLR 549
Dib & Dib v R (1991) 52 A Crim R 64
DJV v R (2008) 200 A Crim R 206
Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339
Gilham v R [2012] NSWCCA 131
Giourtalis v R [2013] NSWCCA 216
JDK v R (2009) 194 A Crim R 333
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Lee v R [2013] NSWCCA 68
Lundy v The Queen (New Zealand) [2013] UKPC 28
Quartermaine v The Queen (1980) 143 CLR 595
R v Giovannone [2002] NSWCCA 323; 140 A Crim 1
Reg v Kilbourne [1973] AC 729
Shepherd v The Queen (1991) 170 CLR 573
Stafford v The State [1999] 1 WLR 2026
Versi v R [2013] NSWCCA 206
Weiss v The Queen [2005] HCA 81; 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365
Category: Principal judgment
Parties: Ali Youssef Mortada (Appellant)
Regina (Respondent)
Representation: Counsel:
P Strickland SC (Appellant)
P Ingram SC (Crown)
Solicitors:
Bannisters Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/270970
Decision under appeal

Date of Decision:

2012-09-28 00:00:00

Before:

Knox DCJ

File Number(s):

2009/270970

Judgment

THE COURT: The appellant Mr Mortada appeals from his conviction of an offence under the Drug Misuse and Trafficking Act 1985 (NSW). It was not disputed on appeal that the trial judge committed appellable error in failing to give a warning about the use of propensity reasoning in his summing up of evidence adduced over the previous six weeks. His Honour had indicated, both informally during argument, and also in his formal ruling admitting the evidence, that he would do so, but neither the Crown nor the defence reminded him of this three weeks later. The Crown's approach to the appeal was either that leave should not be granted, or else that the appeal should be dismissed by reason 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 Mortada v R

Details

AGLC: Mortada v R [2014] NSWCCA 36
Case: [2014] NSWCCA 36
Decision Date: 24 March 2014

CaseChat Overview and Summary

In this case, the appellant, Mortada, appealed against his conviction for a criminal offence. The dispute centred on the failure of the trial judge to give a direction about the propensity of the accused to commit the crime, contrary to a ruling made when the evidence was admitted. The appeal was heard in the High Court of Australia. The legal issues that the court needed to decide were whether the decision not to seek a propensity direction was a deliberate forensic decision and whether the guilty verdict was inevitable and there was no substantial miscarriage of justice. The court held that the failure to give a propensity direction was a deliberate forensic decision and that the guilty verdict was inevitable and there was no substantial miscarriage of justice. The proviso was applied to dismiss the appeal. The court found that the appellant's conviction was safe and that the appeal should be dismissed. The court held that the failure to give a direction about the propensity of the accused to commit the crime was a deliberate forensic decision, and that the guilty verdict was inevitable and there was no substantial miscarriage of justice. The appellant's appeal was dismissed, and his conviction was upheld.

Orders