R v Masri - [2005] NSWCCA 330

CITATION:
R v Masri [2005] NSWCCA 330

HEARING DATE(S): 14 September 2005

JUDGMENT DATE:

14 September 2005

JUDGMENT OF:
Grove J at 1, 12, 14; Simpson J at 2, 15; Buddin J at 13

DECISION:
(i) appeal allowed; (ii) conviction and sentence quashed; (iii) bail granted, subject to conditions

CATCHWORDS:
appeal against conviction - supply prohibited drug (MDMA/ecstasy) - plea of guilty - traffickable quantity - deemed to have the drug in possession for supply - appellant instructed counsel possession for personal use - counsel error advising "a deemed supply" - miscarriage of justice

LEGISLATION CITED:

Drug Misuse and Trafficking Act 1985, s25, s29

PARTIES:
Crown - Respondent
Ali Masri - Appellant

FILE NUMBER(S):
CCA 2005/991

COUNSEL:
W Roser - Crown
H Cox - Appellant

SOLICITORS:
S Kavanagh - Crown
C Hunter - Appellant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0108

LOWER COURT JUDICIAL OFFICER:
Puckeridge DCJ

2005/991

GROVE J
SIMPSON J
BUDDIN J
Wednesday 14 September 2005

REGINA v Ali MASRI

Judgment

1 GROVE J: I will ask Simpson J to give the first judgment.

2 SIMPSON J: On 27 February 2004 the appellant entered a plea of guilty to an indictment alleging that, on 25 July 2003, he supplied a prohibited drug (MDMA/ecstasy). He was duly convicted. On 16 September 2004 Puckeridge DCJ sentenced him to imprisonment with a non-parole period of nine months and a balance of term of 12 months. Notwithstanding the plea of guilty, in the present proceedings the appellant appeals against his conviction. The Crown accepts that it is appropriate to allow the appeal and to set aside the conviction and sentence (without prejudice to the Crown’s entitlement to proceed upon the indictment).

3 Given the concession made on behalf of the Crown it is possible to state the circumstances briefly.

4 The appellant was arrested on 25 July 2003. He was in possession of 13.2g of MDMA. By s29 of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”), a person in possession of an amount of a prohibited drug not less than the traffickable quantity is deemed to have the drug in possession for supply unless, relevantly, the person proves that he or she had possession of the drug otherwise than for supply. 0.57 of a gram is a traffickable quantity of MDMA. The appellant was, accordingly, charged under s25 of the DMT Act with supply of the drug.

5 The appellant was represented by counsel. On her advice he entered a plea of guilty to the charge. The advice was given, and the plea entered, notwithstanding that the appellant at all times instructed his counsel that he had possession of the drug for his personal use. Counsel believed, and advised the appellant, that his claim to have possession of the drug only for personal use did not affect his guilt of the charge of supply but was relevant as a matter in mitigation.

6 The proceedings came before Judge Puckeridge on 16 September 2004. The appellant…

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 Masri

Details

AGLC: R v Masri [2005] NSWCCA 330
Case: [2005] NSWCCA 330
Decision Date: 14 September 2005

CaseChat Overview and Summary

The appellant, Masri, appealed against his conviction for supplying a prohibited drug, MDMA, also known as ecstasy. The case was heard by the Supreme Court of Victoria. The appellant had pleaded guilty to the charge but argued that his counsel's advice had been incorrect and that this constituted a miscarriage of justice. Specifically, he contended that his counsel had incorrectly advised him that he was "deemed to have the drug in possession for supply" when, in fact, he had instructed counsel that the possession was for personal use.

The legal issues before the court were whether the appellant's counsel's advice was indeed incorrect and whether this misadvice amounted to a miscarriage of justice. The court considered the appellant's contention that his counsel had misinformed him about the legal implications of possessing a traffickable quantity of a prohibited drug. The court also needed to determine whether the misadvice rendered the appellant's guilty plea invalid and, if so, what the appropriate remedy would be.

The court found that the appellant's counsel had indeed provided incorrect advice, leading to a misunderstanding of the legal consequences of possessing a traffickable quantity of a prohibited drug. The court held that this misadvice constituted a miscarriage of justice, as it had led the appellant to plead guilty under a mistaken belief about the nature of his offence. Consequently, the court quashed the conviction and ordered a retrial. The court emphasised the importance of ensuring that defendants are accurately informed of the legal implications of their decisions and the potential consequences of their pleas.

Orders