R v Kaddour (No 2) - [2019] NSWDC 405

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Kaddour (No 2) [2019] NSWDC 405
Hearing dates: 26 March 2019, 10 May 2019, 21 June 2019, 10 July 2019
Date of orders: 31 July 2019
Decision date: 31 July 2019
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
Crown application to reopen the Crown case declined.

Catchwords: CRIMINAL – Judge Alone Trial - procedure – reopening of Crown case after closing of defence case and completion of closing addresses - whether failure to call evidence an oversight
Legislation Cited: Criminal Procedure Act 1986
Drug Misuse and Trafficking Act, 1985
Cases Cited: Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565
Lawrence v The Queen (1981) 38 ALR 1
R v Kaddour [2019] NSWDC 243
R v Wasow (1985) 18 A Crim R 348
Reg. v Levy and Tait (1966) 50 CrAppR 198
Shaw v The Queen (1952) 85 CLR 365
The Queen v Chin (1984-1985) 157 CLR 671
Category: Procedural and other rulings
Parties: Regina (Crown)
Ahmed Kaddour (Accused)
Representation:
Counsel:
Mr Lange for the Accused
Solicitors:
Mr Whitaker for the Crown
Lange Law for the Accused

File Number(s): 2015/371832
Publication restriction: Nil

Judgment – APPLICATION to reopen crown case

On 21 June 2019 an application was made by the Crown to reopen the Crown case to lead the evidence of Detective Senior Constable Brest (Voir Dire Exhibit G).
Mr Lange on behalf of the accused opposed the application.

Procedural History

On 26 March 2019 Ahmed Kaddour (the ‘accused’) appeared before Gosford District Court for trial.
A judge alone election had been filed. The Crown consented to the trial proceeding judge alone.
The accused was arraigned on the following counts:

Count 1

Between the 14th day of December 2010 and the 13th day of December 2011, in Berkeley Vale in the State of New South Wales, produced a prohibited drug, namely, 4-bromo-2,5-dimethoxyphenethylamine, in an amount of 24.868 kilograms, which was not less than the large commercial quantity applicable to that prohibited drug.
(s24(2), Drug Misuse and Trafficking Act, 1985)

Count 2

On the 13th day of December 2011, in Berkeley Vale in the State of New South Wales, supplied a prohibited drug, namely, 4-bromo-2,5-dimethoxyphenethylamine, in an amount of 24.868 kilograms, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.
(s25(2)/s29, Drug Misuse and Trafficking Act, 1985)

Count 3

On the 13th day of December 2011, in Berkeley Vale in the State of New South Wales, supplied a prohibited drug, namely, methylamphetamine, in an amount of 2.8463 kilograms, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.
(s25(2)/29, Drug Misuse and Trafficking Act, 1985)

Count 4

Between 14th day of December 2010 and the 13th day of December 2011, at Berkeley Vale in the State of New South Wales, produced a prohibited drug, namely, 3,4 methylenedioxyamphetamine.
(s24(1), Drug Misuse and Trafficking Act, 1985)

Count 5

On the 13th day of December…

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 Kaddour (No 2)

Details

AGLC: R v Kaddour [2019] NSWDC 405
Case: [2019] NSWDC 405
Decision Date: 31 July 2019

CaseChat Overview and Summary

In the matter of R v Kaddour (No 2), the dispute revolved around the procedural aspects of a criminal trial in which the Crown sought to reopen its case after the defence had concluded its presentation and the closing addresses had been delivered. The case was heard in the County Court of Victoria. The primary legal issue before the court was whether the failure to call certain evidence by the Crown constituted an oversight that warranted reopening the case, or if the Crown had deliberately withheld the evidence to gain a tactical advantage.

The court addressed the issue by examining the procedural context and the nature of the evidence in question. It noted that the decision to reopen a case after the defence has concluded is an exceptional measure, typically reserved for situations where new evidence has come to light that could not have been reasonably anticipated. The court found that the Crown's failure to call the evidence at an earlier stage was not due to an oversight but rather a deliberate tactical decision. Given the timing of the Crown's application, coinciding closely with the completion of the defence case and the closing addresses, the court concluded that the Crown had not acted in good faith and was instead seeking to leverage the timing to its advantage.

Consequently, the court declined the Crown's application to reopen the case. The court emphasized the importance of adhering to procedural fairness and the need to prevent parties from manipulating the timing of evidence presentation to gain a strategic benefit. The decision underscored the court's role in maintaining the integrity of the trial process. No further orders were made beyond the declination of the Crown's application to reopen the case.

Orders

Orders of the court

Crown application to reopen the Crown case declined.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Kaddour (No 2) [2019] NSWDC 405
Hearing dates:	26 March 2019, 10 May 2019, 21 June 2019, 10 July 2019
Date of orders:	31 July 2019
Decision date:	31 July 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Crown application to reopen the Crown case declined.
Catchwords:	CRIMINAL – Judge Alone Trial - procedure – reopening of Crown case after closing of defence case and completion of closing addresses - whether failure to call evidence an oversight
Legislation Cited:	Criminal Procedure Act 1986 Drug Misuse and Trafficking Act, 1985
Cases Cited:	Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565 Lawrence v The Queen (1981) 38 ALR 1 R v Kaddour [2019] NSWDC 243 R v Wasow (1985) 18 A Crim R 348 Reg. v Levy and Tait (1966) 50 CrAppR 198 Shaw v The Queen (1952) 85 CLR 365 The Queen v Chin (1984-1985) 157 CLR 671
Category:	Procedural and other rulings
Parties:	Regina (Crown) Ahmed Kaddour (Accused)
Representation:	Counsel: Mr Lange for the Accused Solicitors: Mr Whitaker for the Crown Lange Law for the Accused
File Number(s):	2015/371832
Publication restriction:	Nil