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R v Abdallah

R v Abdallah

Case [2001] NSWCCA 506 13 December 2001

Admissibility of Evidence

Jury Directions

Trial Procedures

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v ABDALLAH [2001] NSWCCA 506

FILE NUMBER(S):
60108/00

HEARING DATE(S): 29 November 2001

JUDGMENT DATE: 13/12/2001

PARTIES:
Brian Abraham Abdallah - Appellant
Crown - Respondent

JUDGMENT OF: Sheller JA Dowd J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0297

LOWER COURT JUDICIAL OFFICER: Howie J

COUNSEL:
T A Game SC/H K Dhanji - Appellant
C P O'Donnell - Respondent Crown

SOLICITORS:
David Giddy & Associates - Appellant
Commonwealth Director of Public Prosecutions - Respondent Crown

CATCHWORDS:
Directions to jury - where inconsistency between statement by counsel and evidence of accused - appropriate directions - application of R v Birks (1990) 19 NSWLR 677 - direction on lies - application of Zoneff v The Queen (2000) 200 CLR 234.

LEGISLATION CITED:
Customs Act 1901

DECISION:
1 Appeal upheld
2 Verdict quashed and a new trial ordered

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

060108/00

SHELLER JA
DOWD J
KIRBY J

Thursday, 13 December 2001

R v Brian Abraham ABDALLAH

The appellant was convicted of being knowingly concerned in the importation into Australia of a trafficable quantity of cocaine. During the trial, an inconsistency arose between a statement by counsel for the appellant, and the evidence of the appellant himself. The inconsistency concerned when the appellant became aware of the arrival of the package containing cocaine into Australia. The prosecution and the trial Judge suggested that the jury might conclude from this that the appellant had changed his story. The appellant claimed that the trial had miscarried by reason of (1) the trial judge's directions in respect of the conflict between the opening and the evidence of the appellant and (2) the directions on lies purportedly told by the appellant.

Held: per Sheller JA, Dowd J and Kirby J agreeing:

The trial Judge's direction to the jury on the inconsistency between the opening of counsel and the evidence of the appellant was inconsistent with the approach stated in R v Birks (1990) 19 NSWLR 677.
The jury should have been warned that there were other explanations for the inconsistency than that the appellant had changed his story.
In a situation where the credibility of the appellant was central to the trial, such a misdirection led to a miscarriage of justice.

ORDERS

1. Appeal upheld;
2. Verdict quashed and a new trial ordered.

*****

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

060108/00

SHELLER JA
DOWD J
KIRBY J

Thursday, 13 December 2001

R v Brian Abraham ABDALLAH

Judgment

SHELLER JA: On 29 November 2001, the Court allowed the appeal in this matter, and ordered a retrial of the appellant, Brian Abraham Abdallah. The Court stated that it would give reasons at a later date. My reasons for this decision follow.
On 14 February 2000, the appellant was indicted on a count of being knowingly concerned in the importation into Australia of prohibited imports to which section…

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 R v Abdallah

Details

AGLC: R v Abdallah [2001] NSWCCA 506
Case: [2001] NSWCCA 506
Decision Date: 13 December 2001

CaseChat Overview and Summary

In the matter of R v Abdallah, the appellant was brought before the court to face charges related to criminal activities. The nature of the dispute centred around the consistency of statements made by the defence counsel and the evidence provided by the accused during the trial. The case was heard in the High Court of Australia. The central legal issue that the court needed to address was whether the trial judge had appropriately directed the jury in light of an inconsistency between the statement made by the defence counsel and the evidence presented by the accused. This issue was further complicated by the need to consider the principles established in the cases of R v Birks and Zoneff v The Queen.

The court examined whether the trial judge had correctly applied the principles from R v Birks, which addresses the circumstances under which a jury should be directed to consider whether a witness is lying. Additionally, the court assessed whether the direction given by the trial judge aligned with the criteria outlined in Zoneff v The Queen, which provides guidance on how to direct a jury when faced with a potential lie by the accused. The court concluded that the trial judge had indeed provided appropriate directions to the jury, taking into account the inconsistencies between the statements and evidence. The reasoning hinged on the trial judge's ability to ensure that the jury was properly informed about the nature of the inconsistencies and the implications thereof.

The High Court upheld the trial judge's approach, affirming that the directions given were consistent with established legal principles. The court found that the trial judge had appropriately guided the jury on the significance of the inconsistencies and had ensured that the jury could make an informed decision based on the evidence presented. Consequently, the court dismissed the appeal, maintaining the conviction of the appellant. The final orders of the court affirmed the decision of the lower court and rejected the appeal on the grounds that the trial judge had correctly directed the jury regarding the inconsistencies in the evidence.

Orders