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Musa v The Queen

Musa v The Queen

Case [2019] NSWCCA 279 22 November 2019

Miscarriage of Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Musa v R [2019] NSWCCA 279
Hearing dates: 11 October 2019
Decision date: 22 November 2019
Before: Gleeson JA at [1]
Johnson J at [88]
Cavanagh J at [89]
Decision:
(1) Grant leave to appeal on ground 2.

(2) Refuse leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) on ground 3.
(3) Appeal against conviction dismissed.
Catchwords: CRIME – appeals – leave to appeal against conviction – Drug Misuse and Trafficking Act 1985, s 25(1) – deemed supply of traffickable quantity of a prohibited drug methylamphetamine – unreasonable verdict – issue of possession – whether open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – miscarriage of justice – complaints about Crown’s conduct at trial and closing address – where no complaint made at trial – whether applicant should be bound by forensic decisions
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5(1), 5F, 6(1)
Criminal Appeal Rules (NSW), r 4
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
Gold Buyers Act 1921 (WA), s 36
Cases Cited: AP v R [2013] NSWCCA 189
Browne v Dunn (1893) 6 R 67
Chahine v R [2006] NSWCCA 179
Fennell v The Queen [2019] HCA 37
Flack v R [2011] NSWCCA 167
Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188
Halmi v R [2008] NSWCCA 259
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Chin (1985) 157 CLR 671; [1985] HCA 35
R v Delon (1992) 29 NSWLR 29
R v Dib (1991) 52 A Crim R 64
R v Filippetti (1978) 13 A Crim R 335
R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Stanford v R [2018] NSWCCA 249
Williams v Douglas (1949) 78 CLR 521
Category: Principal judgment
Parties: Mohamed Abdimalik Musa (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Little (Applicant)
B Hatfield (Respondent)
Solicitors:
Laith Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/96579
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Before:

Culver DCJ

File Number(s):

2017/96579

Judgment

GLEESON JA: On 8 July 2018 the applicant was found guilty and convicted in the District Court of the supply of a prohibited drug, methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act). The supply was a deemed supply under s 29 of the DMT Act, established by proof of possession of a traffickable quantity of the prohibited drug, being more than 3 g of methylamphetamine.
On 24 August 2018, Culver DCJ sentenced 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 Musa v The Queen

Details

AGLC: Musa v The Queen [2019] NSWCCA 279
Case: [2019] NSWCCA 279
Decision Date: 22 November 2019

CaseChat Overview and Summary

In the case of Musa v The Queen, the appellant, Musa, contested his conviction under the Drug Misuse and Trafficking Act 1985 for the deemed supply of a traffickable quantity of methylamphetamine. Musa's appeal was against his conviction, seeking leave to appeal on the basis of an unreasonable verdict, the issue of possession, and alleged miscarriage of justice due to the Crown’s conduct at trial and in the closing address. The court had to decide whether the verdict was unreasonable, whether it was open to the jury to be satisfied beyond reasonable doubt that Musa was guilty, and whether Musa's complaints about the Crown's conduct could form the basis for an appeal despite the lack of contemporaneous objection.

The court examined the evidence presented and the jury's role in evaluating the guilt of the accused. It considered whether the jury was reasonably satisfied beyond reasonable doubt that Musa was guilty of the offence. The court also assessed whether the Crown's conduct during the trial and closing address amounted to a miscarriage of justice, despite Musa's failure to object at the time. Additionally, the court considered whether Musa was bound by the forensic decisions made during the trial proceedings.

After careful consideration, the court determined that the verdict was not unreasonable and that it was open to the jury to be satisfied beyond reasonable doubt that Musa was guilty. The court also found that Musa's complaints about the Crown’s conduct did not amount to a miscarriage of justice and that he was bound by the decisions made during the trial. The appeal was dismissed, and the conviction was upheld.

Orders