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R v El-Azzi

R v El-Azzi

Case [2004] NSWCCA 455 16 December 2004

Admissibility of Evidence

Expert Evidence

Circumstantial Evidence

Corroboration

Judicial Review

Criminal Law

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CITATION: R v El-Azzi [2004] NSWCCA 455

HEARING DATE(S): 1 June 2004, 2 June 2004

JUDGMENT DATE:
16 December 2004

JUDGMENT OF: Santow JA at 1; Simpson J at 70; Sperling J at 224

DECISION: (1) Appeal against conviction dismissed; (2) Leave to appeal against sentence granted ; (3) Appeal against sentence dismissed

CATCHWORDS: appeal against convictions - knowingly take part in manufacture of not less than large commercial quantity of methylamphetamine - conspiracy to manufacture not less than large commercial quantity of methylamphetamine - proper characterisation of the object of the conspiracy - impossibility of achievement by use of materials available - whether because object of conspiracy impossible of achievment by use of means proposed a permanent stay of proceedings ought be ordered - whether judge ought to have directed the jury they must be satisfied beyond reasonable doubt that the object of the alleged conspiracy was the manufacture of methylamphetamine as distinct from amphetamine - whether separate trial of first count ought to have been ordered - admissibility of coincidence evidence - directions concerning evidence admissible on individual counts - the effect of doubts concerning credibility of a witness in relation to one count on jury consideration of other counts - directions concerning circumstantial evidence - evidence of deceased witness read - indemnified witnesses - cross-examination of appellant on matters relevant only to credibility - evidence of prior criminal conviction - evidence of disciplinary proceedings - discretion to grant leave to cross-examine appellant on credibility - unfairness - "substantial probative value" - unreasonable verdicts - corroboration - corroboration of evidence of accomplices - whether one accomplice can corroborate the evidence of another - directions concerning unreliability of witnesses - jury access to transcripts of counsels' addresses and summing up - leave to appeal against sentence - appeal dismissed - leave granted to appeal against sentence - appeal dismissed

LEGISLATION CITED: Crimes Act 1900 s186
Criminal Appeal Act 1912 s5F, s6
Criminal Procedure Act 1986 s29, s64
Drug Misuse and Trafficking Act 1985 s24(2), s26
Evidence Act (NSW) 1995 s65, s98, s101, s102, s103, s104, s112, s128, s135 s136 s137, s164, s165, s192
Evidence Act 1977 (Qld) s15(2)

CASES CITED: Director of Public Prosecutions v Nock [1978] AC 979
Hoch v The Queen [1988] HCA 50; 165 CLR 292
House v The King [1936] HCA 40; 55 CLR 499
Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51
Kevin William Phillips v The Queen [1985] HCA 79; 159 CLR 45
M v The Queen [1994] HCA 63; 181 CLR 487
Matusevich v The Queen [1977] HCA 30; 137 CLR 633
Pollitt v The Queen [1992] HCA 35; 174 CLR 558
R v "S" [2000] NSWCCA 13; 111 A Crim R 225
R v Barbouttis (1995) 37 NSWLR 256
R v Bartle [2003] NSWCCA 329; 181 FLR 1
R v Brown (1960) [1960] VR 382
R v Chan [2002] NSWCCA 217; 131 A Crim R…

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 El-Azzi

Details

AGLC: R v El-Azzi [2004] NSWCCA 455
Case: [2004] NSWCCA 455
Decision Date: 16 December 2004

CaseChat Overview and Summary

The appeal before the court involved a conviction for knowingly participating in the manufacture of a large commercial quantity of methylamphetamine and conspiracy to manufacture the same quantity of methylamphetamine. The appellant, El-Azzi, contested the characterisation of the conspiracy's object, arguing that the manufacture of methylamphetamine was impossible given the materials available. The court was tasked with determining whether the impossibility of achieving the conspiracy's object via the proposed means warranted a permanent stay of proceedings. Additionally, the court considered whether the trial judge should have directed the jury to be satisfied beyond reasonable doubt that the conspiracy's objective was specifically the manufacture of methylamphetamine and not amphetamine.

The court addressed the characterisation of the conspiracy's object, ruling that despite the impossibility of achieving the specific goal with the available materials, the conspiracy's object was properly characterised as the manufacture of methylamphetamine. This conclusion was based on the intent and actions of the participants, which aligned with the broader goal of manufacturing methylamphetamine, regardless of the specific materials used. The court found no error in the trial judge's directions to the jury, nor in the decision not to order a separate trial for the first count. Issues surrounding the admissibility of coincidence evidence, the credibility of witnesses, and the use of circumstantial evidence were also examined, with the court finding no basis for a stay of proceedings or a new trial.

The court dismissed the appeal against the convictions, affirming the jury's verdicts as reasonable and supported by the evidence. The appeal against sentence was dismissed, but the court granted leave to appeal against the sentence. The court concluded that the trial had been conducted fairly, and the verdicts were not unreasonable given the evidence presented. The appeal was ultimately dismissed, but the appellant was granted leave to appeal against the sentence.

Orders