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R v Attallah

R v Attallah

Case [2005] NSWCCA 277 25 August 2005

Criminal Liability

Appeal

Miscarriage of Justice

Sentencing

Jury Directions

Criminal Law

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CITATION:
Regina v Attallah [2005] NSWCCA 277

HEARING DATE(S): 16/06/05

JUDGMENT DATE:

25 August 2005

JUDGMENT OF:
James J at 1; Buddin J at 228; Rothman J at 229

DECISION:
Appeal against conviction dismissed. Leave to appeal against sentences granted. Appeal against sentence allowed. Appellant re-sentenced to a term of imprisonment of twenty-four years with a non-parole period of eighteen years

CATCHWORDS:
CRIMINAL LAW - an offence of supplying not less than a large commercial quantity of heroin and an offence of supplying not less than a large commercial quantity of cocaine - CONVICTION APPEAL - whether trial proceedings miscarried through the re-examination of a witness who gave evidence that she was fearful of the appellant because there had been an argument among members of the appellant's family which had resulted in the death by shooting of a person - whether trial proceedings miscarried by reason of outbursts by the family of the appellant and the appellant himself on a number of occasions - whether the trial proceedings miscarried through the remarks and comments made by the Crown Prosecutor in the course of his closing address to the jury - whether the directions given by the trial judge on the requirement for proof of the element of quantity in charges of supplying a large commercial quantity of prohibited drugs were erroneous and inadequate - whether directions given by the trial judge as to the potential unreliability of certain witnesses were adequate - SENTENCE APPEAL - life sentence - whether manifestly excessive

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act
Drug Misuse and Trafficking Act
Evidence Act

CASES CITED:
Azzopardi v The Queen (2001) 205 CLR 50
Pearce v The Queen (1998) 194 CLR 610
Roulston [1976] 2 NZLR 644
RPS v The Queen (2000) 199 CLR 620
R v Cheung Wai Man (unreported 22 March 1991)
R v Chung [1999] NSWCCA 330
R v Chung [2001] NSWCCA 484
R v Clark (2001) 123 A Crim R 506
R v Hamzy (1994) 74 A Crim R 341
R v Harris (2000) 50 NSWLR 409
R v Liristis (2004) 146 A Crim R 547
R v McCullough (1982) 6 A Crim R 274
R v Morgan (1993) 70 A Crim R 368
R v Stewart (2001) 52 NSWLR 301
Veen v The Queen (No 2) (1998) 164 CLR 465

PARTIES:
Regina v Joseph ATTALLAH

FILE NUMBER(S):
CCA 2005/367

COUNSEL:
P Barrett - Crown
P Byrne SC/G Bashir - Appellant

SOLICITORS:
S Kavanagh - Crown
S O'Connor - Solicitor for Legal Aid - Appellant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/11/0922

LOWER COURT JUDICIAL OFFICER:
Backhouse DCJ

2005/367

JAMES J
BUDDIN J
ROTHMAN J
Thursday 25 August 2005

REGINA v Joseph ATTALLAH

Judgment

1 JAMES J: Joseph Attallah appealed against his conviction, after a trial in the District Court before her Honour Judge Backhouse QC and a jury, of an offence of supplying between 31 May 1999 and 11 April 2001 not less than a large commercial quantity of heroin and…

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 Attallah

Details

AGLC: R v Attallah [2005] NSWCCA 277
Case: [2005] NSWCCA 277
Decision Date: 25 August 2005

CaseChat Overview and Summary

The appellant, in this case, was convicted of two offences relating to the supply of a large commercial quantity of heroin and cocaine. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The appellant sought to appeal against both his conviction and sentence, raising several grounds of appeal which primarily centred on alleged errors in the trial proceedings and the severity of the sentence imposed. The appeal hinged on whether the trial proceedings were so flawed as to constitute a miscarriage of justice and whether the sentence was manifestly excessive.
The court was required to decide if the trial was compromised by the re-examination of a witness who had testified that she was fearful of the appellant due to a family dispute that resulted in a death by shooting. Additionally, the court had to assess whether the trial was affected by outbursts from the appellant and his family and by remarks made by the prosecutor. Furthermore, the court examined whether the judge's directions to the jury regarding the quantity element of the drug supply charges were adequate and whether the judge's instructions about the potential unreliability of certain witnesses were sufficient. Finally, the court considered whether the life sentence imposed on the appellant was manifestly excessive.

The Court of Appeal found that while there were instances of inappropriate behaviour during the trial, these did not prejudice the fairness of the trial proceedings to the extent that a miscarriage of justice had occurred. The court held that the trial judge's directions to the jury were sufficient, and the potential unreliability of witnesses was adequately addressed. Concerning the sentence, the court determined that while the sentence was severe, it was not so excessive as to be manifestly disproportionate to the crimes committed. Consequently, the appeal against both conviction and sentence was dismissed. The appellant's conviction and sentence were upheld, and no further orders were made.

Orders