Ozgen v R

Case [2021] NSWCCA 252


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Ozgen v R [2021] NSWCCA 252
Hearing dates: 20 September 2021
Decision date: 03 November 2021
Before: Leeming JA at [1];
Price J at [82];
Hamill J at [83].
Decision:

1. Grant leave to appeal in respect of grounds 2 and 3 of the notice of appeal.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW – appeal against conviction – appellant charged with two federal drug offences and one state drug offence – indictment signed by person authorised by Commonwealth Director of Public Prosecutions but not authorised by NSW Director of Public Prosecutions – lack of authority in relation to state offence raised towards conclusion of trial – judge directed jury not to return verdict on state count – jury found appellant guilty on both federal counts – whether indictment and convictions a nullity – whether amendments introduced following R v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2 and R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 saved indictment – whether indictment severable – significance of power to amend a defective indictment – significance of District Court’s exercise of federal jurisdiction – whether jury’s verdict unreasonable – whether trial judge erred in not leaving defence that appellant did not know drugs were imported to jury – appeal dismissed

Legislation Cited:

Commonwealth Constitution, s 77(iii), 109

Commonwealth Criminal Code, ss 11.1, 11.2A, 13.4, 13.5, 307.5

Crimes Act 1914 (Cth), 4K

Criminal Appeal Act 1912 (NSW), s 5(1)(a)

Criminal Procedure Act 1986 (NSW), ss 15, 16(1)(i), 21, 29, 46, 126, 130

District Court Act 1973 (NSW), s 166

Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 29

Interpretation Act 1987 (NSW), s 49(8)

Judiciary Act 1903 (Cth), s 68

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Bond v The Queen (2000) 201 CLR 213; [2000] HCA 13

Bounds v R [2006] HCA 39; 80 ALJR 1380

Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14

Byrnes v The Queen (1999) 199 CLR 1; [1999] HCA 38

Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693; [1904] HCA 35

Coleman v Power (2004) 220 CLR 1; [2004] HCA 39

CSL Australia Pty Ltd v Formosa [2009] NSWCA 363; 261 ALR 441

CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64

Director of Public Prosecutions v Currie; Director of Public Prosecutions v Daniels (a pseudonym) [2021] VSCA 272

FX v R; GX v R [2020] NSWCCA 189

Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46

JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320; [2014] NSWCA 228

Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

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AGLC
Ozgen v R [2021] NSWCCA 252
Case
[2021] NSWCCA 252
Decision Date

CaseChat Overview and Summary

Ozgen was convicted of two federal drug offences and one state drug offence. The appeal was against the conviction, challenging the validity of the indictment and the directions given to the jury. The High Court was tasked with determining whether the indictment and convictions were a nullity due to the lack of authority from the NSW Director of Public Prosecutions for the state offence. The court also considered whether the amendments introduced post-Halmi and Janceski cases saved the indictment, whether the indictment was severable, and the significance of the power to amend a defective indictment. Furthermore, the court examined whether the District Court's exercise of federal jurisdiction was pertinent, whether the jury's verdict was unreasonable, and if the trial judge erred in not leaving the defence that Ozgen did not know the drugs were imported to the jury.

The court held that the indictment was not a nullity despite the lack of authority from the NSW Director of Public Prosecutions for the state offence. The amendments introduced following the Halmi and Janceski cases effectively cured the defect, rendering the indictment valid. The court found that the indictment was severable, allowing the federal counts to proceed independently of the state count. The power to amend a defective indictment was significant in preserving the validity of the charges. The exercise of federal jurisdiction by the District Court did not undermine the validity of the proceedings. The jury's verdict was not unreasonable, and the trial judge did not err in not leaving the defence concerning Ozgen's knowledge of the drug importation to the jury.

Consequently, the appeal was dismissed. The High Court upheld the conviction on the federal drug offences, finding no merit in the challenges to the indictment or the trial process. The court confirmed that the indictment, despite its initial defect, was valid following the appropriate amendments and the severability of the charges. The verdict of the jury was affirmed as reasonable, and no error was found in the trial judge's handling of the case. The appeal was therefore rejected, and the convictions remained in place.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Legal Principle Established

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