Reported Decision:
125 A Crim R 113
New South Wales
Court of Criminal Appeal
CITATION: R v El Azzi [2001] NSWCCA 397 FILE NUMBER(S): CCA 60543/01 HEARING DATE(S): 02/10/01 JUDGMENT DATE:
8 October 2001PARTIES :
Regina v William El AzziJUDGMENT OF: Mason P at 1; Levine J at 2; Howie J at 3
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 01/11/0667; 01/11/0728 LOWER COURT JUDICIAL
OFFICER :Hock DCJ
COUNSEL : M. Grogan - Crown
C. Waterstreet - ApplicantSOLICITORS: S.E. O'Connor - Crown
Kings Lawyers - ApplicantCATCHWORDS: Appeal against interlocutory judgment - abuse of process - conspiracy to commit the impossible LEGISLATION CITED: Criminal Appeal Act 1912 - s 5F
Drug Misuse and Trafficking Act 1985 - ss 3, 24, 26
Criminal Procedure Act 1986 - s 47CASES CITED: R v McCoy [2001] NSWCCA 255
R v Glossop [2001] NSWCCA 165
BWM (1997) 91 A Crim R 260
Mok (1987) 27 A Crim R 438
Checconi (1988) 34 A Crim R 160
McCready (1985) 20 A Crim R 32
DPP v Nock [1978] AC 979
R v Barbouttis (1995) 37 NSWLR 256
Walton v Gardner (1993) 177 CLR 378
Ridgeway v The Queen (1995) 184 CLR 19
R v Kingswell [1984] 3 NSWLR 273
Kapeliotis and Mari (1995) 82 A Crim R 300
R v Smith [1975] AC 476
R v Shivpuri [1987] 1 AC 1
R v Mai (1992) 26 NSWLR 371
R v Sew Hoy [1994] 1 NZLR 257
Maxwell v HM Advocate [1980] SLT 241
Howard Smith Paper Mills Ltd v The Queen (1957) 8 DLR 2d 449
R v Murray [2001] NSWCCA 289
R v Smith [1995] 1 VR 10DECISION: Application for leave to appeal is refused
IN THE COURT OF
CRIMINAL APPEAL60543/01
MONDAY 8 OCTOBER 2001MASON P
LEVINE J
HOWIE J
REGINA v WILLIAM EL AZZIJUDGMENT
1 MASON P: I agree with Howie J.
2 LEVINE J: I agree with the order of Howie J and his reasons therefor.
3 HOWIE J: This is an application for leave to appeal under s 5F of the Criminal Appeal Act against an interlocutory judgment of Judge Hock refusing to grant a permanent stay of two counts in an indictment upon which the applicant has been arraigned in the District Court. Those two counts each allege that the applicant conspired with others to manufacture a prohibited drug contrary to s 26 of the Drug Misuse and Trafficking Act. There were two bases upon which it was said that the proceedings were an abuse of process and so should be stayed: firstly, it was contended that the conspiracies alleged did not amount to a criminal offence and, therefore, the proceedings in respect of those two counts were doomed to fail; secondly, it was contended that it was unfair for the prosecution to proceed on conspiracy charges in respect of the facts giving rise to those counts, even if it were legally open to the Crown…
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- AGLC
- R v El Azzi [2001] NSWCCA 397
- Case
- [2001] NSWCCA 397
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the trial judge had correctly exercised his discretion in admitting the evidence and whether the appellant's right to a fair trial had been compromised by the admission of that evidence. The court needed to determine whether the evidence was obtained through an abuse of process and whether its admission would result in a miscarriage of justice.
The court held that the trial judge had correctly exercised his discretion in admitting the evidence. The court found that there was no abuse of process as the police conduct did not amount to an impropriety that would render the trial unfair. The court also held that the appellant's right to a fair trial had not been compromised as the evidence was relevant and necessary to the case. The court concluded that the trial judge had properly exercised his discretion in admitting the evidence and that the appeal should be dismissed.
The final orders of the court were that the appeal be dismissed and that the interlocutory judgment of the Supreme Court of Victoria be affirmed. The court held that the appellant's convictions and sentences were upheld, and that the evidence obtained through the alleged misconduct could be admitted at trial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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