R v Merhi - [2020] NSWDC 821

District Court

New South Wales

Medium Neutral Citation: R v Merhi [2020] NSWDC 821
Hearing dates: 30 September 2020; 5-16 October 2020; 5 November 2020
Decision date: 05 November 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
VERDICTS - Guilty to Count 1 & Count 3
Guilty to alternate count to Count 2
Not Guilty – Count 4

Catchwords:
TRIAL BY JUDGE – knowingly take part in manufacture of large commercial quantity of prohibited drug – supply cannabis – consciousness of guilt – circumstantial evidence – admissions – prior inconsistent statements – recent inventions

Legislation Cited:
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Evidence Act 1995

Cases Cited:
Fleming v The Queen (1998) 197 CLR 250
Siafakas v R [2016] NSWCCA 100

Category: Principal judgment
Parties: Regina (Crown)
Joseph Merhi (Accused)
Representation: Counsel:
Mr N Adams SC (DPP)
Mr P Godkin (Accused)

File Number(s): 2018/002923
Publication restriction: No

Judgment

Introduction

The accused was arraigned on 30 September 2020 in respect of four counts to which he pleaded ‘not guilty’. Count 1 is an allegation of, between 1 January 2017 and 29 September 2017 at Galston, taking part in the manufacture of an indictable quantity of a prohibited drug, to wit, methylamphetamine; Count 2 an allegation of, at the same time and place, taking part in the manufacture of a large commercial quantity of a prohibited drug, to wit 3,4-methylenedioxymethylamphetamine (MDMA) and Count 3 is an allegation of, at the same time and place, taking part in the manufacture of a large commercial quantity of a prohibited drug, to wit, Gamma butyrolactone (GBL), each offence being committed on the Crown case in the period of time up to 29 September 2017, the date of the arrest of the accused. Count 4 is an allegation of supply a prohibited drug, to wit cannabis leaf, between 1 January 2017 and 29 September 2017. All charges brought pursuant to the provisions of the Drug Misuse and Trafficking Act 1985 (“the Act” or “DMT”)
The trial is one by Judge in accordance with the relevant provisions at ss 132 and 132A Criminal Procedure Act, 1986 with the consent of the Crown. The trial was delayed a few days after arraignment to permit counsel for the accused the opportunity to obtain instructions having come into the trial at short notice. Judgment was delayed by my requirement to sit in Wollongong for 2 weeks after submissions concluded on 16 October 2020.

Factual background to the issues at trial

All the offences are alleged to have occurred at a property on which is the residence of the prisoner (shared at the time with his mother) at 1 Mansfield Road Galston. The Court conducted a view of the property and all relevant parts of the property on Wednesday 7 October 2020. The property is a semi-rural property. I am informed it is approximately 5 acres in area with a residence facing Mansfield Road, behind which are a number of bird cages of some size…

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 Merhi

Details

AGLC: R v Merhi [2020] NSWDC 821
Case: [2020] NSWDC 821
Decision Date: 05 November 2020

CaseChat Overview and Summary

In the matter of R v Merhi, the appellant was charged with multiple drug-related offences including manufacturing and supplying a large commercial quantity of a prohibited drug, specifically cannabis. The case was heard by a judge alone in the County Court of Victoria. The prosecution alleged that the appellant was deeply involved in the cultivation and distribution of cannabis, while the defence argued that the appellant was not involved in any such activities.

The primary legal issue before the court was whether the appellant knowingly participated in the manufacture of a large commercial quantity of a prohibited drug and supplied cannabis. The court had to assess the sufficiency of the circumstantial evidence presented, including admissions made by the appellant and prior inconsistent statements, against the defence's claims of recent inventions and innocence. The court needed to determine if the prosecution had established the appellant's guilt beyond reasonable doubt.

The court found that the circumstantial evidence, including the appellant's admissions and prior inconsistent statements, were sufficient to establish the appellant's involvement in the manufacture and supply of cannabis. The court was not persuaded by the defence's argument that the admissions were recent inventions. The court concluded that the evidence pointed to the appellant's consciousness of guilt and involvement in the alleged activities. Consequently, the appellant was found guilty of the charges relating to the manufacture and supply of cannabis, while being acquitted of the remaining charge.

The court ordered that the appellant be found guilty on Count 1 and Count 3, guilty on the alternate count to Count 2, and not guilty on Count 4.

Orders

Orders of the court

VERDICTS - Guilty to Count 1 & Count 3

Guilty to alternate count to Count 2

Not Guilty – Count 4

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Merhi [2020] NSWDC 821
Hearing dates:	30 September 2020; 5-16 October 2020; 5 November 2020
Decision date:	05 November 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	VERDICTS - Guilty to Count 1 & Count 3 Guilty to alternate count to Count 2 Not Guilty – Count 4
Catchwords:	TRIAL BY JUDGE – knowingly take part in manufacture of large commercial quantity of prohibited drug – supply cannabis – consciousness of guilt – circumstantial evidence – admissions – prior inconsistent statements – recent inventions
Legislation Cited:	Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Evidence Act 1995
Cases Cited:	Fleming v The Queen (1998) 197 CLR 250 Siafakas v R [2016] NSWCCA 100
Category:	Principal judgment
Parties:	Regina (Crown) Joseph Merhi (Accused)
Representation:	Counsel: Mr N Adams SC (DPP) Mr P Godkin (Accused)
File Number(s):	2018/002923
Publication restriction:	No