Supreme Court of South Australia
(Court of Criminal Appeal)
R v ALWAZAN
[2016] SASCFC 155
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Auxiliary Justice Chivell)
23 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
Appeal against conviction. Appellant found guilty by verdict of a jury of trafficking in methylamphtamine. Where the drugs were found in the appellant’s car while he was in the house. Where the main issue at trial was possession. Where the accused did not give evidence but called another witness to give evidence. Where trial Judge referred to a reasonable probability rather than possibility that anyone other than the appellant had possession of the methylamphetamine.
Whether Judge erred in her directions as to the burden and standard of proof. Whether Judge failed to adequately put the defence case. Whether Judge erred in her directions in relation to proof of possession.
Held: Kourakis CJ, Vanstone J and Chivell AJ - appeal allowed. The Judge’s misstatement led to a real risk that the jury was misled about the correct approach to the defence evidence.
Douglas v The Queen (2012) 86 ALJR 1086; Liberato v The Queen (1985) 159 CLR 507; Murray v The Queen (2002) 211 CLR 193; Castle and Bucca v The Queen [2016] HCA 46, applied.
B and D (1993) 66 A Crim R 192; R v GNN (2000) 78 SASR 293; R v Lavery (2013) 116 SASR 242; The Queen v Calides (1983) 34 SASR 355; R v Phan and Ton (2010) 108 SASR 260; R v Wilson and Ors (1986) 42 SASR 203, considered.
R v ALWAZAN
[2016] SASCFC 155Court of Criminal Appeal: Kourakis CJ, Vanstone J and Chivell AJ
KOURAKIS CJ: I agree for the reasons given by Vanstone J that the Judge’s direction that the jury should return a verdict of not guilty ‘if it is a reasonable probability’ that persons other than the appellant had possession of the methylamphetamine in the Audi may have misled the jury on the onus of proof carried by the prosecution. That is particularly so having regard to the reverse onus on the question of sale. As a result there has been a miscarriage of justice.
I express no opinion on whether the failure to tell the jury that Ms Alwazan’s testimony raised the possibility of possession by others resulted, of itself, in a miscarriage. It would have been better, and in accord with the precepts in the authorities marshalled by Vanstone J, if an explicit direction to that effect had been given. However,…
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- R v Alwazan [2016] SASCFC 155
- Case
- [2016] SASCFC 155
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the trial judge's summing up contained misdirections or non-directions that prejudiced the appellant's right to a fair trial. Specifically, the court had to consider if the directions on the burden and standard of proof were accurate, if the directions concerning proof of possession were adequate, and if the defence case, as presented through the evidence of the appellant's sister, was sufficiently put to the jury.
The court, comprising Kourakis CJ, Vanstone J, and Chivell AJ, allowed the appeal. The reasoning focused on a misstatement made by the trial judge in his summing up, which, when considered alongside the failure to adequately present the defence case, was deemed to have prejudiced the appellant. The court found that the summing up, when viewed as a whole, contained errors that warranted a new trial.
Consequently, the court ordered that the appeal be allowed, the conviction be quashed, and a new trial be directed.
Orders
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Background
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Evidence
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Decision
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