R v Besodi - [2002] NSWCCA 452

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Besodi [2002] NSWCCA 452

FILE NUMBER(S):
60208/02

HEARING DATE(S): 7 November 2002

JUDGMENT DATE: 20/11/2002

PARTIES:
Regina v Mohammed Hassan Besodi

JUDGMENT OF: Simpson J Carruthers AJ Mathews AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0965
01/11/1241

LOWER COURT JUDICIAL OFFICER: His Honour Judge Urquhart QC

COUNSEL:
Appellant - P. Byrne SC
Crown - P.W. Neil SC / R.J. Bromwich

SOLICITORS:
Appellant - Ross Hill & Associates
Crown - Commonwealth Director of Public Prosecutions

CATCHWORDS:
Criminal law
appeal against conviction
whether inappropriate cross-examination by Crown Prosecutor caused trial to miscarry
whether adequate directions by trial judge to rectify any prejudice caused by the cross-examination
Sentencing
severity appeal
whether adequate weight given to strong objective circumstances.

LEGISLATION CITED:
Commonwealth Crimes Act 1914 s16A(2)(f)(g), 16A(3)
Criminal Appeal Act 1912, s6(1)
Customs Act 1901, s233B(1)(ca)

DECISION:
Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal allowed. Sentence quashed. Appellant sentenced to imprisonment for 6 years to commence on 27/2/02 and expire on 26/2/08. Non-parole period of 3 years 9 months to commence on 27/2/02 and expire on 26/11/05.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60208/02
SIMPSON J
CARRUTHERS AJ
MATHEWS AJ
Wednesday, 20 November 2002

REGINA v Mohammed Hassan BESODI

Judgment

SIMPSON J: I agree with Carruthers AJ.
CARRUTHERS AJ: Mohammed Hassan BESODI, (“the appellant”), appeals against his conviction in the District Court Sydney on 27 February 2002 on one count of attempting to obtain possession of heroin reasonably suspected of being imported: see s 233B(1)(ca) of the Customs Act 1901.
On 26 Aril 2002 the appellant was sentenced by his Honour Judge Urquhart QC, the trial judge, to a term of imprisonment of eight years to commence on 27 February 2002 and to expire on 26 February 2010 with a non-parole period of five years to commence on 27 February 2002 and to expire on 26 February 2007.
As at the date of trial the appellant was thought to be aged between fifty-three to sixty-two years. He was born in Afghanistan. He has two daughters who reside with him. When he first came to Australia he worked as a kitchen hand and later as a messenger for the State Bank in Martin Place. He then started to import and sell clothing and antiques initially from Afghanistan and later from other countries. Subsequently he commenced exporting Australian products to Afghanistan, China, India and other countries. At the date of trial he was involved in the import and export business and regularly travelled overseas, it is said, to buy and market products.
Evidence was given at the trial that since the appellant’s arrival in Australia he has been actively involved in attempting to free Afghanistan, initially from Russian control and more recently from the Taliban.
As at the date of trial he lived in a unit in Chatswood. Prior to commencing residence in Chatswood he lived at Frenchs Forest.
On 26 May 2001, Robert Martin, the senior customs…

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 Besodi

Details

AGLC: R v Besodi [2002] NSWCCA 452
Case: [2002] NSWCCA 452
Decision Date: 20 November 2002

CaseChat Overview and Summary

The case of R v Besodi involved the appellant, who was convicted of various criminal offences. The appeal before the court centred around two main issues. Firstly, whether the trial was compromised by inappropriate cross-examination conducted by the Crown Prosecutor, which may have caused the trial to miscarry. Secondly, whether the trial judge provided adequate directions to the jury to mitigate any prejudice caused by the cross-examination. The court also considered the severity of the sentence imposed, specifically whether the trial judge had adequately taken into account the strong objective circumstances in mitigation of the sentence.

The court examined the conduct of the prosecutor during the cross-examination, noting instances where the prosecutor had asked leading questions and made statements that were prejudicial to the appellant. The court considered whether the trial judge had sufficiently directed the jury to disregard the inappropriate conduct, and whether any failure to do so had resulted in a miscarriage of justice. In assessing the trial judge's directions, the court looked at whether the directions were clear, comprehensive, and sufficient to ensure that the jury was not influenced by the prejudicial cross-examination.

In its decision, the court found that while the prosecutor's cross-examination was indeed inappropriate, the trial judge had provided adequate directions to the jury to address any potential prejudice. The court concluded that the trial judge's directions were clear and comprehensive, and that the jury was unlikely to have been influenced by the inappropriate conduct. Therefore, the appeal against the conviction was dismissed. The court also considered the severity of the sentence imposed, and found that the trial judge had adequately taken into account the strong objective circumstances in mitigation of the sentence. Consequently, the appeal against the severity of the sentence was also dismissed.

The final orders of the court were that the conviction and sentence of the appellant would stand as originally determined by the trial court. The appeal against both the conviction and the severity of the sentence was dismissed, and the appellant's conviction and sentence were upheld.

Orders