R v Alwazan

Case [2016] SASCFC 155

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 155

Court of Criminal Appeal:   Kourakis CJ, Vanstone J and Chivell AJ

  1. 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.

  2. 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 appellant, R v Alwazan, appealed his conviction to the Supreme Court of South Australia. The appeal concerned the directions given by the trial judge to the jury regarding the burden and standard of proof, and the proof of possession. The appellant also argued that the trial judge failed to adequately present his defence case. An appeal against the sentence imposed was abandoned.

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

Orders of the court

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Background

Background to the litigation

He now appeals against that conviction on grounds relating to the directions given to the jury in the Judge’s summing up. In particular, complaints are made about the directions going to the burden and standard of proof, and those going to proof of possession. In addition it is said that the Judge failed to adequately put the defence case. An appeal against the sentence imposed was abandoned. Background On 22 April 2014 police attended at the home of the appellant’s parents at Mansfield Park. Police found the appellant in a flat at the rear of the house. In the flat police located the sum of $5,050, which was in the bed. They also located the appellant’s passport and a small tub containing a crystalline substance. On the bedside table were found the keys to an Audi motor vehicle which was parked outside in the driveway. That vehicle was registered in the name of the appellant. In evidence, police were unable to say whether or not it was locked. Upon searching the vehicle police found a plastic resealable bag containing crystals. This was in the compartment of the driver’s door. There were also two smaller bags in the centre console. One contained crystals and the other white powder. Police also found in the car two mobile phones, two sets of small digital scales, a pipe which could be used to smoke methylamphetamine, as well as documents bearing the appellant’s name. Upon analysis the bags from the car were found to contain over 17 grams of powder containing 11.4 grams of methylamphetamine. Evidence suggested that if sold in “points”, this quantity was worth over $15,000. At trial, the only issue was that of possession. The appellant did not give evidence. However he called his sister Zeinab Alwazan in his defence. Ms Alwazan said she lived with her parents at these premises. She said the appellant did not. The flat was not occupied by any family member and was used as a guest room. She said that in April 2014 the appellant was living somewhere in Kilburn. He was married. She said he would sometimes visit and stay at the Mansfield Park residence. Ms Alwazan said that on 22 April 2014, about two hours before police came, the appellant and his wife had arrived at the premises. She said she did not know how they got there. She said she thought the appellant and his wife had been in Melbourne before their arrival. She said after he arrived the appellant went to the flat to rest. She saw him go into the flat. Ms Alwazan said that her older brother Mustafa also arrived at the house prior to police. She said she thought it was after the appellant’s arrival. He came with two men. She did not know the two men and could not describe them. She did not know where they were at the time police arrived. She did not see them leave the house. Ms Alwazan was somewhat inconsistent in her evidence about the circumstances in which her brother Mustafa and the two men arrived. In evidence in chief she said that her brother and the two men arrived in the Audi. However in cross-examination she said she did not see the Audi arrive – although she heard it – but she did see her brother Mustafa and the two men in the vicinity of the Audi and in the process of opening the roller shutter doors. She said that neither Mustafa nor the two men came into the house. Asked whether the appellant was in the Audi on that day she said: “No, not that I know”. Ms Alwazan confirmed that the Audi was a car usually driven by the appellant. She also said that her brother Mustafa wished to buy the Audi from the appellant and subsequently did so. Arguments of appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Consequently, my decision in the present case rests on the Judge’s misstatement, set out earlier, coupled with the failure to adequately put the defence case. Conclusion I would allow the appeal, quash the conviction and direct a new trial. CHIVELL AJ: I agree that the appeal should be allowed for the reasons given by Vanstone J. I agree with the Chief Justice that the issues discussed in The Queen v Calides[5] and R v Lavery[6] do not arise here because, as Vanstone J points out, acceptance of Ms Alwazan’s evidence was not necessarily inconsistent with the appellant’s guilt.[5] (1983) 34 SASR 355.[6] (2013) 116 SASR 242.

Ratio Decidendi

Legal Principle Established

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