R v Kaddour

Case [2018] QCA 37

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kaddour [2018] QCA 37

PARTIES:

R
v
KADDOUR, Ahmed Chehab
(appellant)

FILE NO/S:

CA No 7 of 2017
DC No 1160 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 16 December 2016 (Muir DCJ)

DELIVERED ON:

16 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2017

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – where the appellant was found guilty of one count of unlawfully supplying a dangerous drug – where the appellant was a passenger in a car that was under surveillance – where the appellant was filmed handing a clip-seal bag containing a white crystalline powder to the driver of the car – where the appellant instructed the driver to stow the bag inside the front of his shorts – where the contents of the clip-seal bag were not particularised – where expert evidence was given at trial by a police officer as to the appearance and feel of dangerous drugs – where the Crown case was a circumstantial one – where the appellant gave evidence at trial that the crystalline substance was a training supplement that was commercially and legally available – whether the jury could be satisfied beyond reasonable doubt that the white crystalline powder was a dangerous drug

Drugs Misuse Act 1986 (Qld), s 6, s 128, s 129(1)(a), s 129(1)(b)

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, applied
Czako v R [2015] NSWCCA 202, considered
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, considered
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, applied
Italiano v Western Australia [2012] WASCA 260, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Marinovich v R (1990) 46 A Crim R 282; [1990] WASC 226, considered
Peacock v The King (1911) 13 CLR 619; [1911] HCA 66, applied
Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, applied
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, applied

COUNSEL:

P E Nolan for the appellant
J A Wooldridge for the respondent

SOLICITORS:

Richardson McGhie for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P: On a charge that a person has, contrary to s 6 of the Drugs Misuse Act 1986, unlawfully supplied a dangerous drug to another it is usual to prove the identity of the substance the subject of the charge by tendering a certificate of analysis pursuant to s 128 of the Drugs Misuse…

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AGLC
R v Kaddour [2018] QCA 37
Case
[2018] QCA 37
Decision Date

CaseChat Overview and Summary

The case of R v Kaddour involved the appellant who was found guilty of unlawfully supplying a dangerous drug. The appellant was a passenger in a car under surveillance by law enforcement. He was observed handing a clip-seal bag containing a white crystalline powder to the driver, with instructions to conceal it within his shorts. The contents of the bag were not identified at trial, but expert evidence from a police officer suggested the appearance and feel of dangerous drugs. The appellant argued that the substance was a commercially available training supplement, which was legally obtainable.

The central legal issue was whether the jury could be satisfied beyond reasonable doubt that the substance was a dangerous drug, given the circumstantial nature of the Crown’s evidence. The appellant's testimony provided an alternative explanation, which, if believed, would have exonerated him. However, the court held that the rejection of the appellant's explanation by the jury, coupled with the circumstantial evidence, sufficiently supported the guilty verdict. The court emphasized that the appellant’s fabrication, if accepted by the jury, could reinforce the prosecution's case and indicate guilt.

The court concluded that the jury's decision was rational and supported by the evidence. The jury was entitled to reject the appellant's explanation as a fabrication, and this rejection, along with the circumstantial evidence, was sufficient to uphold the verdict. The reasoning paths available to the jury were logical and led to a guilty verdict that was neither unreasonable nor unsupported by the evidence. The appeal was dismissed, affirming the appellant's conviction.

ORDERS:
Appeal dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant’s offering of an innocent explanation for the Crown’s circumstantial case had the effect of narrowing the scope of any inquiry. Concerning a hypothesis offered by an accused, Griffith CJ said in Peacock, approving a passage from Starkie on Evidence:“… his account of the transaction is for this purpose always most material and important. The effect may be on the one hand to suggest a view of the case which consists with the innocence of the accused, and which might otherwise have escaped observation. On the other hand its effect may be to narrow the question to the consideration whether that statement be or be not excluded and falsified by the evidence.”[19] (Emphasis added)[19]ibid at 629. That is to say, once the appellant volunteered an explanation for the Crown’s circumstantial case, which, if true, exonerated him, it followed that the question for the jury in practical terms ultimately became whether the Crown had satisfied the jury, beyond a reasonable doubt, that the appellant’s explanation was false. Once the jury concluded that the explanation was indeed false, it followed that there was no longer any inference competing with the one urged by the Crown and this absence of any competing inference was capable of acting to reinforce the rightness of the prosecution’s circumstantial case.[20] As a consequence the rejection of the appellant’s evidence as fabricated meant that it was open for the jury to conclude that the circumstances proved by the Crown, while inconclusive in the abstract, acquired a conclusive character from the appellant’s failure to explain them.[21][20]Weissensteiner v The Queen (1993) 178 CLR 217; Chalmers v R (2011) 37 VR 464 at [42].[21]Cf. Peacock, supra at 669 per O’Connor J. The second result of a rejection of the appellant’s evidence as a lie is that the appellant’s fabrication may itself be taken by a jury to be evidence of his guilt if the jury were to conclude that the appellant had lied because he was conscious that if he told the truth, then the truth would convict him.[22] The lie meant that the jury could have concluded that the appellant had no honest answer to the Crown’s contention that the white powder was a dangerous drug. The jury could have concluded that the false reasons for secreting the packet of white powder, the false reasons for the elaborate drive to the greater privacy of Thynne Road, the false reason for the appellant’s reaction at the appearance of the security guard, was further evidence that the white powder that the appellant had given to Brady was, as he knew, a dangerous drug.[22]Edwards v The Queen (1993) 178 CLR 193 at 209 per Deane, Dawson and Gaudron JJ. These being paths of reasoning to a guilty verdict that were open to the jury, it cannot be accepted that the verdict of guilty was either unreasonable or not supported by the evidence. There was sufficient evidence to support the verdict of guilty and that evidence was reinforced by the jury’s rejection of the appellant’s evidence. The available process of reasoning was a rational process. In short, this was simply another case where the Crown sought to prove the charge it had laid by means of circumstantial evidence and in which an accused person’s lies to explain that case strengthened the argument for a guilty verdict.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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