R v El-Kheir

Case [2004] NSWCCA 461

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v El-Kheir [2004]  NSWCCA 461 revised - 10/01/2005

FILE NUMBER(S):
060301/04

HEARING DATE(S):               29 November 2004

JUDGMENT DATE: 20/12/2004

PARTIES:
Regina
Assaad El-Kheir

JUDGMENT OF:       Tobias JA Hoeben J Smart AJ   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          02/11/0616

LOWER COURT JUDICIAL OFFICER:     Patten DCJ

COUNSEL:
A: Mr M Bracks
R: Ms R Burgess

SOLICITORS:
A: Legal Aid Commission of NSW
R: Commonwealth Director Public Prosecutions

CATCHWORDS:
CRIMINAL LAW - Evidence - Character - Bad character - Good character - Whether adduced by defence - Whether evidence given deliberately not inadvertently - Conscience decision
CRIMINAL LAW - Evidence - Character - Requirement for leave - Leave required - Error by trial judge - No miscarriage of justice - Evidence Act, ss 112, 192(2) 
CRIMINAL LAW - Jury - Directions - Character direction - Trial judge only directs that evidence of good character able to be considered in relation to guilt  - No propensity direction - Requirement to so direct - Risk of jury misunderstanding legitimate use of evidence
CRIMINAL LAW - Evidence - Voice identification evidence - Quality of - Unreliable - Discretion to refuse admission - Identification warning given to jury - Evidence Act, ss 135, 137

LEGISLATION CITED:
Evidence Act 1995
Crimes Act 1900
Criminal Appeal Act 1912

DECISION:
(1) Appeal against conviction allowed
(2) The conviction and sentence of the appellant be quashed and that there be a new trial

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

060301/04

TOBIAS JA
HOEBEN J
SMART A-J

Monday 20 December 2004

REGINA v ASSAAD EL-KHEIR

Judgment

  1. TOBIAS JA: On 3 September 2003, the appellant was indicted to stand trial before his Honour Judge Patten and a jury in respect of the following charge:

    "That on 22 November 2001 at Sydney, New South Wales, without reasonable excuse, he did attempt to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 applied, namely, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to heroin, which had been imported into Australia in contravention of the said Act."

  2. The trial concluded on 17 September 2003 with the jury returning a verdict of guilty.  On 14 November 2003 his Honour sentenced the appellant to imprisonment for 7 years and 8 months with a non-parole period of 4 years and 8 months, taking into account a period of 4 months in pre-trial custody.  The appellant appeals to this Court against his conviction only.

    The Crown case

  3. On 15 November 2001, a package was consigned at the office of DHL Worldwide Express (DHL) in Istanbul, Turkey for carriage to Australia.  The package was addressed to Salaam Joumaa at 200 Noble Avenue, Greenacre, New South Wales.  The contents of the package were described as "car part". 

  4. The package arrived in Sydney on 17 November 2001 and was placed in the bond store operated by DHL.  On 18 November 2001, officers of the Australian Customs…

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AGLC
R v El-Kheir [2004] NSWCCA 461
Case
[2004] NSWCCA 461
Decision Date

CaseChat Overview and Summary

In the case of R v El-Kheir, the appellant was convicted of drug-related offences and appealed against his conviction. The appeal focused on several issues, including the handling of evidence concerning the appellant's character, the admission of voice identification evidence, and the jury directions provided by the trial judge.

The primary legal issues before the court were whether the trial judge erred in dealing with the appellant's "bad character" evidence that emerged unexpectedly during the trial, and whether the judge properly directed the jury on the use of evidence of good character. The appellant argued that the trial judge's handling of the pension card issue, which revealed a possible social security offence, constituted a miscarriage of justice. Additionally, the court examined whether the trial judge's failure to adequately direct the jury on the use of bad character evidence amounted to a miscarriage of justice. The court also considered whether the voice identification evidence was sufficiently reliable to be admitted.

The court found that the trial judge's handling of the pension card issue, which revealed the appellant's possible social security offence, did not constitute a miscarriage of justice. However, the court held that the trial judge's failure to properly direct the jury on the use of bad character evidence did amount to a miscarriage of justice. The court concluded that the appellant's good character evidence was central to his defence, and the jury needed clear direction on how to consider this evidence in relation to his guilt. Furthermore, the court found that the voice identification evidence was of poor quality and its admission was an error, but it did not result in a miscarriage of justice.

The appeal against the conviction was allowed, and the conviction and sentence were quashed. The court ordered a new trial to ensure the appellant received a fair trial in which the relevant law was strictly followed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Some nine witnesses, relatives and friends of the appellant, were called for the defence mainly to give evidence of good character. They gave evidence that he was honest, pious and counselled against drug use. Ground of Appeal 1 - the learned trial judge erred in the manner in which he dealt with the evidence of "bad character" of the appellant, which emerged unexpectedly during the trial. It is necessary to preface this ground of appeal by reference to the course of that part of the trial concerning the appellant's good character. Evidence was adduced on behalf of the appellant that he was a person of good character. One Federal Agent was cross-examined to the effect that he did not believe that the appellant had a criminal history and another gave evidence in cross-examination that the appellant was unknown to the police at the time that they obtained the warrant to search the Greenacre premises and that he had never been charged with, or convicted of, any offence in Australia. The appellant gave sworn evidence. In his evidence-in-chief he said that he had never been investigated, charged or convicted in respect of any criminal offence in Lebanon. A certificate from the Judiciary Registrar of the Republic of Lebanon was tendered in support of that evidence. Early in his evidence-in-chief the appellant said that he resided with his wife and her two children (of a previous marriage) in a two-bedroom unit in Mimosa Road, Greenacre. He agreed that he was currently in receipt of a carer's pension, as he was required to look after his wife who had had an eye operation and had failing eyesight. He produced two carer's pension cards, which were tendered by his trial counsel and admitted without objection as Exhibit 13. Somewhat later in his examination-in-chief, his counsel sought access to the two pension cards. He asked the interpreter to read out the addresses on those cards, one of which was 1/816 Punchbowl Road, Punchbowl expiring in June 2004. The other had expired in June 2003 and had the address 19 Catherine Street, Punchbowl. The appellant was then asked to explain why the addresses were not listed as Mimosa Street. The appellant stated that the addresses on the cards were those of his sister. When asked why his sister's address was on the cards, he responded (AB 587):"I've lodged my application with Centrelink at my sister's address so that informs Centrelink that my wife and I are separate, so that we can, I have more money." At this point trial counsel for the appellant indicated to his Honour that he had almost concluded the appellant's evidence-in-chief. There was then a short adjournment after which, in the absence of the jury, the appellant's trial counsel sought a certificate under s 128 of the Evidence Act 1995 (the Evidence Act) upon the basis that the appellant's evidence as recorded above might have disclosed what amounted to a social security offence. Counsel indicated (at AB 588) that the answer was not one for which he was prepared. His Honour then indicated to the appellant that he was entitled to object to answering questions on the basis that he had a "privilege against self-incrimination". The appellant maintained that having sworn on the Koran, he was telling the truth. His Honour then granted the appellant a certificate pursuant to s 128(6) of the Evidence Act.

Decision

Reasons for decision

It follows from the foregoing that, in my opinion, the verdict of the jury was both reasonable and supportable having regard to the evidence as a whole. Accordingly, this ground should be rejected.Conclusion Notwithstanding my rejection of Grounds of Appeal 2, 3 and 4, the failure of the trial judge to direct the jury as to the use they might make of evidence of bad character in the event they came to the conclusion as a consequence of the pension card issue that the appellant was of such a character, constituted a miscarriage of justice to which, in my opinion, the proviso to s 6(1) of the Criminal Appeal Act does not apply. Much of the Crown case depended upon allegations which the appellant on oath denied and which he sought to support by evidence of his good character. The Crown sought to negate that evidence by reference to the pension card issue and, in particular, to use that material to attack the appellant's credit upon which his defence in large measure relied. In that part of the trial judge's directions to the jury which I have extracted at [71] above, there was in my opinion a significant possibility that if the jury determined that the appellant was not a person of good character, it would seek to use that conclusion as entitling them to consider the probability of the appellant having committed the subject offence. His Honour's failure to properly direct the jury in relation to the use which it might make of any finding of bad character resulted in the loss by the appellant of "a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was strictly followed": Wilde v The Queen (1988) 164 CLR 365 at 372. The loss of the chance of acquittal cannot be other than a substantial miscarriage of justice. Accordingly, I would propose the following orders:(1) Appeal against conviction allowed.(2) The conviction and sentence of the appellant be quashed and that there be a new trial. HOEBEN J: I agree with Tobias JA SMART A-J: I agree with Tobias JA.

Ratio Decidendi

Legal Principle Established

His Honour directed the jury that the Crown was required to establish that the appellant attempted to obtain exclusive or joint possession of the narcotic goods. I have already set out his Honour's directions in this regard in [115] above. Further, his Honour directed the jury in these terms (at AB 813):"What you do need to be satisfied about beyond reasonable doubt in relation to the issue of whether the accused attempted to obtain possession is whether the circumstantial facts proved to your satisfaction, convinced you beyond reasonable doubt, that the element of the charge has been proved in the sense that there is no other rational explanation for what occurred other than that the accused is guilty." (emphasis added) I have also previously referred to the further directions given by the trial judge to the jury with respect to the issue of possession or attempted possession in [117] above. In my opinion these various directions and, in particular, the parts thereof which I have emphasised made it clear to the jury that they had to be satisfied beyond reasonable doubt that the appellant intended to exercise control over the contents of the flywheels in the sense that there was no other rational explanation for what he was doing such as that he was merely assisting Adam Kheir to open them. As the Crown submitted, it was implicit in these directions that sole possession by Adam Kheir or joint possession by Adam Kheir and another person apart from the appellant, would not support a verdict of guilty. In my opinion, no further directions were required and I would reject the appellant's challenge to the summing up which submits to the contrary. It follows from the foregoing that, in my opinion, the verdict of the jury was both reasonable and supportable having regard to the evidence as a whole. Accordingly, this ground should be rejected.Conclusion Notwithstanding my rejection of Grounds of Appeal 2, 3 and 4, the failure of the trial judge to direct the jury as to the use they might make of evidence of bad character in the event they came to the conclusion as a consequence of the pension card issue that the appellant was of such a character, constituted a miscarriage of justice to which, in my opinion, the proviso to s 6(1) of the Criminal Appeal Act does not apply. Much of the Crown case depended upon allegations which the appellant on oath denied and which he sought to support by evidence of his good character. The Crown sought to negate that evidence by reference to the pension card issue and, in particular, to use that material to attack the appellant's credit upon which his defence in large measure relied. In that part of the trial judge's directions to the jury which I have extracted at [71] above, there was in my opinion a significant possibility that if the jury determined that the appellant was not a person of good character, it would seek to use that conclusion as entitling them to consider the probability of the appellant having committed the subject offence. His Honour's failure to properly direct the jury in relation to the use which it might make of any finding of bad character resulted in the loss by the appellant of "a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was strictly followed": Wilde v The Queen (1988) 164 CLR 365 at 372. The loss of the chance of acquittal cannot be other than a substantial miscarriage of justice.