Legal Research
Cases
R v El Moustafa

R v El Moustafa

Case [2010] VSCA 40 11 March 2010

Criminal Liability

Admissibility of Evidence

Propensity Evidence

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 817 of 2008

THE QUEEN

ALBERT EL MOUSTAFA

---

JUDGES:	REDLICH and HARPER JJA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2010
DATE OF JUDGMENT:	11 March 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 40
JUDGMENT APPEALED FROM:	R v Albert El Moustafa (Unreported, County Court of Victoria, 1 September 2008, (Judge Jenkins)

---

CRIMINAL LAW – Trafficking in commercial quantity of drug – Propensity evidence – Wrongful admission of documents in applicant’s possession relating to manufacture of methyl amphetamine – Whether comments in charge improperly undermined evidentiary foundation of defence hypothesis – Whether court should view video recording of evidence given at trial for purpose of considering the application of proviso to s 568 Crimes Act 1958 – Viewing of recorded evidence of applicant and one prosecution witness – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr O P Holdenson QC	Chiodo & Madafferi Solicitors

REDLICH JA
HARPER JA
HABERSBERGER AJA:

Following a trial in the County Court sitting at Melbourne the applicant was convicted on one count of trafficking in not less than a commercial quantity of a drug of dependence namely methyl amphetamine (count 1) and one count of possession of methyl amphetamine (count 2). It was the prosecution case that police were in attendance at a room of the Sofitel Hotel as part of investigations into trafficking activities believed to be operating from within the room. The applicant arrived at the door carrying a backpack which contained drugs and trafficking paraphernalia (count 1) and had a small quantity of methyl amphetamine in his pockets (count 2). At trial the applicant pleaded guilty to count 2. He admitted that he was in possession of the backpack which contained the drugs the subject of count 1 but denied ownership of the bag and said that he did not know its contents. Upon conviction the applicant was sentenced to four years imprisonment with a non-parole period of two years and six months and a fine of $400 on count 2.

The applicant now seeks leave to appeal against conviction[1] on the grounds that the trial judge wrongly admitted propensity evidence and directed the jury in her charge in such a way as to undermine a defence hypothesis raised by the evidence.[2]
[1]An application for leave to appeal against sentence was abandoned at the commencement of the appeal.
[2]A proposed ground relating to count 2 was abandoned at the commencement of the appeal.

Evidence at the Trial

Early in the evening of 22 May 2006 police arrived at hotel room 3721 of the Hotel Sofitel to investigate suspected drug trafficking from the room. The police found a number of persons inside including Lauren Clayton to whom the room had been registered. A quantity of drugs and drug paraphernalia were found inside. At 8:04 two men, Drago Kovic and Fred Jackson arrived…

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 Moustafa

Details

AGLC: R v El Moustafa [2010] VSCA 40
Case: [2010] VSCA 40
Decision Date: 11 March 2010

CaseChat Overview and Summary

The case of R v El Moustafa involved the appellant who was charged with trafficking in a commercial quantity of a drug. The prosecution presented evidence that the appellant was involved in the manufacture of methyl amphetamine. The appellant contested the charges, and the case proceeded to trial. Issues arose during the trial regarding the admission of evidence and comments made during the proceedings. The appellant appealed against the conviction and sentence, arguing that the trial judge had erred in the admission of certain evidence and in the handling of the trial process.

The legal issues before the court were whether the trial judge had wrongly admitted documents relating to the manufacture of methyl amphetamine and whether comments made during the charge had improperly undermined the evidentiary foundation of the defence hypothesis. Additionally, the court had to consider whether it should view the video recording of evidence given at trial for the purpose of assessing the application of a proviso to a section of the Crimes Act. The appellant also argued that the trial judge should have viewed the recorded evidence of the applicant and one prosecution witness.

The court found that the trial judge had not erred in admitting the documents in question, as they were relevant to the charge of trafficking in a commercial quantity of a drug. The comments made during the charge did not improperly undermine the defence hypothesis, as they were based on evidence presented at trial. Regarding the video recording of the evidence, the court held that it was not necessary to view the recording to assess the application of the proviso to the section of the Crimes Act. The court also determined that there was no requirement for the trial judge to view the recorded evidence of the applicant and the prosecution witness. Consequently, the appeal was dismissed, and the conviction and sentence were upheld.

Orders