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

1. 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).

2. Mr Lange on behalf of the accused opposed the application.

Procedural History

3. On 26 March 2019 Ahmed Kaddour (the ‘accused’) appeared before Gosford District Court for trial.

4. A judge alone election had been filed. The Crown consented to the trial proceeding judge alone.

5. 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 2011, in Berkeley Vale in the State of New South Wales, supplied a prohibited drug, namely, 3,4 methylenedioxyamphetamine.

(s25(1)/s29, Drug Misuse and Trafficking Act, 1985)

6. The accused pleaded not guilty to all counts.

7. On 26 March 2019 pre-trial legal argument was heard in relation to the admissibility of tendency and coincidence evidence.

8. On 10 May 2019 judgment was delivered in relation to those pre-trial matters (R v Kaddour [2019] NSWDC 243).

The Crown case at Trial

9. The Crown case at trial is outlined in R v Kaddour [2019] NSWDC 243 at [15]-[25].

10. In summary, on 13 December 2011 police executed a search warrant at premises at Berkeley Vale and located a large quantity of prohibited drugs in a garage at the rear of the premises. The Crown relied upon a DNA profile matching the accused found on 4 items found within the garage (namely, a breathing mask and 3 latex gloves) to link the accused to the premises.

The evidence at trial

11. On 21 June 2019 the Crown tendered the following evidence in the trial:

• Exhibit A - 4 photographs of 4-bromo-2,5-dimethoxyphenethylamine (24.868 kilograms)

• Exhibit B – 3 photographs of methylamphetamine

• Exhibit C - 4 photographs of 3,4 methylenedioxyamphetamine

• Exhibit D – 10 photographs of pill press and punches

• Exhibit E – 5 photographs of location of 3,4 methylenedioxyamphetamine

• Exhibit F 1-27 – remainder of Crown brief

12. The search warrant videos were played. Evidence was called from the following witnesses:

1. Detective Sergeant Benjamin Whitmore; and

2. Lisa Anne Wedervang (Analyst, FASS).

13. There was no cross examination of either of these witnesses. The Crown case was closed. There was no defence case. The Crown and defence closing addresses were completed.

14. During the defence closing address, Mr Lange submitted on behalf of the accused, inter alia, that there was no evidence to establish that it was, in fact, the accused’s DNA profile found on the items located at the Berkeley Vale premises in circumstances where no evidence had been led in the Crown case to establish that the reference sample used by FASS for comparison purposes was taken from this accused.

15. The DNA evidence admitted in the trial is contained in a FASS Certificate (Exhibit F21). In the FASS Certificate the reference sample used for comparison purposes is identified as follows:

“Buccal sample from Ahmad Kaddour (Barcode No. 52022773)”

16. On the application to reopen the Crown case, the Crown has conceded firstly, that no evidence was led in the Crown case to identify that the reference sample used for DNA comparison purposes was taken from this accused and secondly, that without the DNA evidence there is insufficient evidence to establish each of the offences beyond reasonable doubt there being no other evidence sufficient to link the accused to the Berkeley Vale premises.

17. It is against that background that the Crown has sought to reopen the Crown case to lead the evidence of Detective Senior Constable Brest to establish that the reference sample used for DNA comparison purposes was obtained from the accused on 18 December 2015 (Voir Dire Exhibit G).

18. For the reasons that follow, I decline the Crown application to reopen the Crown case.

The relevant law

19. The relevant principles in relation to an application by the Crown to reopen its case were summarised in The Queen v Chin (1984-1985) 157 CLR 671 at 676 where Gibbs CJ and Wilson J stated as follows:

“The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v. The Queen (1952) 85 CLR 365, at pp 378-380, 383-384, Killick v. The Queen [1981] HCA 63; (1981) 147 CLR 565, at pp 568-571, 575-576 and Lawrence v. The Queen (1981) 38 ALR 1, at pp 3, 7, 22-23. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: Reg. v. Levy and Tait (1966) 50 CrAppR 198, at p 202) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief.”

20. Dawson J made the following observations (at 684-685):

“ The prosecution may be permitted to adduce evidence after the close of the defence case in the discretion of the trial judge. The discretion is, however, to be exercised in favour of the prosecution only in exceptional circumstances and the guiding principle is that the prosecution ought not to be permitted to split its case. That is to say, the prosecution must call all the evidence available to it in support of its case during the presentation of that case. If it fails to do so, it ought not to be allowed to remedy the situation by calling evidence in reply except in exceptional circumstances. Beyond saying that exceptional circumstances do not embrace a situation which ought reasonably to have been foreseen by the prosecution or which would have been covered if the prosecution case had been fully and strictly proved, this Court has declined, having regard to the multifarious directions which a criminal trial may take, to lay down any rigid formula. In Shaw's Case, at p.380, Dixon, McTiernan, Webb and Kitto JJ. expressed the view that:

"It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence."

21. Dawson J continued (at 685):

“There is also authority for the proposition that the prosecution may be permitted to reopen its case to repair omissions of a formal, technical or non-contentious nature. See Archbold, Criminal Pleading, Evidence and Practice, (41st ed. 1982), par.4-414, and the cases there cited.

The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. Ordinarily the depositions upon which he is committed for trial will provide him with this information in advance and if the prosecution intends to call additional evidence it is required to give notice of its intention to do so. The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for the defence.”

22. In R v Wasow (1985) 18 A Crim R 348 the appellant had been charged with supplying indian hemp. During the trial the Crown was permitted to reopen its case to prove that analysis had identified the substance as indian hemp.

23. Street CJ (with whom Hope JA and Enderby J agreed) held that the trial judge was not in error in permitting the Crown to reopen its case. In the absence of such evidence, there was insufficient evidence to support the charge.

24. Street CJ stated as follows:

“The Court has been referred in written submissions that have been filed on behalf of the appellant and the Crown to a substantial number of cases in which courts have been called upon to consider applications for reopening of the prosecution case in order to supplement deficiencies in the evidence. There is plainly discernible in this line of authority recognition that the prosecution could ordinarily expect to be granted leave to reopen to supplement a deficiency that may have arisen through oversight. The bringing of criminal charges involves the prosecution on behalf of the public and in the protection of the public interest of breaches of the public law. There can be little said in principle by way of justification for permitting accused persons to evade due and proper processes of criminal law by some rule which would preclude the Crown reopening to remedy an oversight after the formal words "The Crown Case is Closed" have been pronounced. If the Crown had sought to tender this evidence before formally closing its case and before the legal argument advanced by an appellant, it would, as of right, have been entitled to do so. The circumstance that the defect was disclosed in the course of legal submissions on behalf of the appellant falls far short of establishing that it was on its face unfair to the point of being unjust for the learned trial Judge to grant leave to reopen to recall this supplementary evidence. There are many cases in which, where the presiding judicial officer has refused such leave, an appellate court has intervened by holding that the discretion reposing in the presiding officer ought to have been exercised in favour of allowing the reopening.

In the present case there is nothing to distinguish what took place from an ordinary situation. No special prejudice was imposed upon the appellant in consequence of this leave being granted to the Crown. Every relevant consideration points strongly in support of the correctness of the ruling given by the trial Judge in this regard.”

Submissions of behalf of the Crown and the accused

25. It was submitted on behalf of the Crown (relying upon R v Wasow) that the Court should exercise its discretion to allow the Crown to reopen its case to lead the evidence which was not led in the Crown case in circumstances that can properly be described as an oversight.

26. I note that the Crown has not submitted that there are “very special or exceptional” circumstances (per Gibbs CJ and Wilson J in The Queen v Chin at 676) that would justify the reopening of the Crown case.

27. Further, the Crown submitted that in circumstances where the defence notice pursuant to s143 Criminal Procedure Act did not identify the deficiency, the Crown should not be precluded from remedying the defect in the Crown case.

28. Also, the Crown submitted that in circumstances where the evidence sought to be led related to continuity, the issue was also required to be disclosed in the defence notice pursuant to section 143, Criminal Procedure Act.

29. Mr Lange submitted on behalf of the accused that the accused was entitled to present his case on the basis there was no evidence to link him to the DNA found at the Berkeley Vale premises. In those circumstances, should the Crown reopen its case, Mr Lange submitted that there is considerable prejudice to the accused. Specifically, there was no cross examination of the DNA expert or Mr Creary (who was residing at the premises at the time) and consideration was not given to calling the accused to give evidence. Ultimately, it was submitted that in the absence of very special or exceptional circumstances, the application to reopen the Crown case should be refused.

30. It was further submitted on behalf of the accused that in circumstances where the accused was unaware of the evidence of Detective Brest, there was no obligation to identify the issue in the defence notice pursuant to section 143, Criminal Procedure Act . It was submitted that the obligation on an accused pursuant to section 143 is to respond to the prosecution case. It follows that there was no obligation on the accused to identify a complete lack of evidence and consequent deficiency in the Crown case.

Consideration

31. In determining whether it is appropriate to exercise the Court’s discretion to allow the Crown to re-open its case in the circumstances of this trial, I have firstly considered whether the circumstances can properly be characterised as proof of “some purely formal matter the proof of which was overlooked in chief” (per Gibbs CJ and Wilson J in The Queen v Chin at 676).

32. In my view, the evidence sought to be led cannot be properly characterised as some “purely formal matter the proof of which was overlooked in chief”. Here, the evidence was not merely “overlooked in chief”. The relevant evidence had not been served as part of the Crown brief, the existence of such evidence only becoming apparent to the Crown once the deficiency in the Crown case was identified during the defence closing address.

33. Further, in relation to the question of fairness (per Dawson J in The Queen v Chin at 686) I accept that the defence case was conducted on the basis that there was no evidence in the Crown case to link the accused to the premises and accordingly, the Crown case was not challenged. In such circumstances, I am satisfied there would be unfairness to the accused if the Crown is permitted to reopen its case.

34. Secondly, I have considered the question of whether there was any obligation upon the accused to identify the deficiency in the Crown case at any earlier stage.

35. The obligation pursuant to section 143, Criminal Procedure Act is as follows:

“143   Defence response 

(1)    For the purposes of section 141 (1) (b), the notice of the defence response is to contain the following:

(a)  the name of any Australian legal practitioner proposed to appear on behalf of the accused person at the trial,

(b) the nature of the accused person’s defence, including particular defences to be relied on,

(c)  the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution’s notice under section 142) and with which the accused person intends to take issue,

(d)  points of law which the accused person intends to raise,

(e) notice of any consent that the accused person proposes to give at the trial under section 190 of the Evidence Act 1995 in relation to each of the following:

(i)  a statement of a witness that the prosecutor proposes to adduce at the trial,

(ii)  a summary of evidence that the prosecutor proposes to adduce at the trial,

(f)  a statement as to whether or not the accused person intends to give any notice under section 150 (Notice of alibi) or, if the accused person has already given such a notice, a statement that the notice has been given,

(g)  a statement as to whether or not the accused person intends to give any notice under section 151 (Notice of intention to adduce evidence of substantial mental impairment),

(h)  if any expert witness is proposed to be called at the trial by the accused person, a copy of each report by that witness that is relevant to the case and on which the accused person intends to rely,

(i)  notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,

(j)  notice of any significant issue that the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges,

(k)  if the prosecutor disclosed an intention to adduce at the trial any audio or visual recording or the transcript of any audio or visual recording:

(i)  any request that the accused person has that the recording or transcript be edited (other than in circumstances to which subsection (2) (d) relates), and

(ii)  particulars sufficient to clearly identify the edits that the accused person requests.”

36. The defence notice pursuant to section 143 included, inter alia, the following:

“(b) The accused denies the allegations made against him as contained within the indictment attached to the Notice of Prosecution Case, in that he denies producing or taking part in the productions of, or supplying or being in possession for supply of prohibited drugs.

(c) The accused takes issue with the contention that he manufactured , produced or supplied any drug.”(Voir Dire Exhibit J)

37. Having regard to the contents of the defence notice, I am satisfied there was compliance with section 143, Criminal Procedure Act. Further, I am not satisfied that the evidence sought to be led by the Crown upon reopening the Crown case can properly be characterised as relating to continuity of custody of a proposed exhibit. Rather, the evidence relates to establishing that a DNA sample was taken from this accused.

37. Accordingly, in all the circumstances I decline the Crown application to reopen the Crown case.

Amendments

11 December 2019 - Renamed No 2

Decision last updated: 11 December 2019