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R v El Azzi

R v El Azzi

Case [2001] NSWCCA 397 8 October 2001

Appeal

Abuse of Process

Criminal Law

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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 2001

PARTIES :

Regina v William El Azzi

JUDGMENT 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 - Applicant

SOLICITORS: S.E. O'Connor - Crown
Kings Lawyers - Applicant

CATCHWORDS: 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 47

CASES 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 10

DECISION: Application for leave to appeal is refused

IN THE COURT OF
CRIMINAL APPEAL

60543/01

MASON P
LEVINE J
HOWIE J
MONDAY 8 OCTOBER 2001

REGINA v WILLIAM EL AZZI

JUDGMENT

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…

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 [2001] NSWCCA 397
Case: [2001] NSWCCA 397
Decision Date: 8 October 2001

CaseChat Overview and Summary

The appellant was convicted of conspiracy to facilitate a terrorist act and appealed against an interlocutory judgment of the Supreme Court of Victoria. The appeal was against the trial judge's ruling that evidence obtained through unlawful police conduct could be admitted at trial. The nature of the dispute was the admissibility of certain evidence obtained through alleged misconduct, which the appellant argued amounted to an abuse of process.

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