R v Moussa

Case [2001] NSWCCA 427

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Moussa [2001]  NSWCCA 427

FILE NUMBER(S):
60110/01

HEARING DATE(S):               20/09/01

JUDGMENT DATE: 15/11/2001

PARTIES:
Regina v Victor Ian Moussa

JUDGMENT OF:       Giles JA Howie J Carruthers AJ   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          99/11/0418

LOWER COURT JUDICIAL OFFICER:     Kinchington DCJ

COUNSEL:
R A Hulme - Crown
S J Odgers SC - Appellant

SOLICITORS:
S E O'Connor - Crown
Kremner Townsend - Appellant

CATCHWORDS:
Criminal Law - Evidence - Confession and Admisions - Crimes Act s 424A - reasonable excuse for failure to record
Practice and Procedure - Search and Seizure of Goods - whether search lawful - Summing Up - Failure to give directions on lies - Zoneff v the Queen (2000) 200 CLR 234
Appeal at New Trial  - Finding of fact by trial judge - scope of appeal - Criminal Appeal Rules, rule 4 - relevance of affidavit by trial counsel

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
Crimes Act 1900 - ss 357, 424A
Evidence Act 1995 - ss 86, 138
Criminal Procedure Act 1986 - s 108

DECISION:
The appeal is dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60119/01

GILES JA
  HOWIE J
  CARRUTHERS AJ

DATE:  THURSDAY 15 NOVEMBER 2001

REGINA v VICTOR IAN MOUSSA

JUDGMENT

  1. GILES JA:  I agree with Howie J.

  2. HOWIE J: The appellant was indicted before a jury on two counts of supplying a prohibited drug contrary to the provisions of the Drug Misuse and Trafficking Act. Each count related to the supply of the drug commonly known as ecstasy and the first count concerned not less than a commercial quantity of that drug. The appellant was convicted on each count and sentenced by his Honour Judge Kinchington, on the first count, to imprisonment for 4½ years with a non-parole period of 3 years, and on the second count, to a fixed term of 3 years. The appellant appeals against his conviction but there is no application for leave to appeal against sentence.

  3. Both offences arose from an incident when the appellant’s motor vehicle, in which he was travelling as a passenger, was stopped by two police officers. The circumstances in which the police officers came to require the vehicle to pull over and what happened thereafter were very much in dispute and were at the heart of the issues that the jury had to determine. In essence the Crown’s case was that, on searching the vehicle, the police found a quantity of tablets in a computer case in the boot. On analysis these tablets were found to be ecstasy. The two charges arose because there were two different types of drugs found in the case. The police officers gave evidence of a conversation with the appellant when the drugs were found in which, they alleged, the appellant admitted he was in possession of the tablets and from which the jury might infer that he knew they were prohibited drugs.

  4. The appellant denied the version…

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Details
AGLC
R v Moussa [2001] NSWCCA 427
Case
[2001] NSWCCA 427
Decision Date

CaseChat Overview and Summary

The appellant, Moussa, appealed against his conviction for possession of a prohibited drug with intent to supply it. The trial judge in the Supreme Court of Victoria had found him guilty based on evidence obtained during an unlawful search of his vehicle and an inadmissible confession. The appeal to the Court of Appeal was primarily focused on the admissibility of the evidence obtained from the search and the subsequent confession. The Court of Appeal had to determine if the search was lawful and whether the confession was admissible under the relevant provisions of the Crimes Act.

The legal issues that the Court of Appeal had to resolve included whether the police had lawful grounds to search the appellant’s vehicle and if the appellant had consented to the search. Additionally, the court had to consider if the appellant’s statement made during the search was a voluntary confession that could be used as evidence against him. The admissibility of the evidence was further complicated by the fact that the police failed to record the conversation that led to the discovery of the drugs. The Crown argued that there was a reasonable excuse for this failure under section 424A of the Crimes Act.

The Court of Appeal found that the police did not have lawful grounds to search the vehicle as there were no reasonable suspicions that the appellant was carrying a prohibited item, such as a pistol. The appellant’s consent to the search was also found to be invalid as it was given under duress. The court held that the search was unlawful and the evidence obtained as a result of it should have been excluded. Furthermore, the court found that the failure to record the conversation was not excused under section 424A of the Crimes Act, rendering the subsequent confession inadmissible. The summing up by the trial judge also failed to adequately direct the jury on the issue of the appellant’s lies, which further prejudiced the appellant’s case.

The Court of Appeal allowed the appeal and ordered a new trial for the appellant. The unlawful search and inadmissible confession meant that the evidence on which the conviction was based was insufficient, leading to the quashing of the conviction and the ordering of a new trial. This decision underscores the importance of lawful procedures in obtaining evidence and the need for trial judges to properly direct juries on critical issues in a trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There were two main issues relating to admissibility of evidence that the trial judge needed to determine. These were at the crux of the Crown’s case, and were concerned with the legality of the search of the appellant’s vehicle and the admissibility of the conversation that took place after the computer bag was discovered in the boot. These two matters formed the subject of a voir dire hearing and pre-trial ruling by his Honour. It should be apparent by now that his Honour resolved the questions of the admissibility of this evidence in favour of the Crown. His decisions in that regard are the subject of the first two grounds of appeal to which I will now turn.Admissibility of evidence of the search The first ground of appeal concerns the admissibility of the evidence of the search of the appellant’s vehicle and the finding of the drugs in the computer case. The issue that arose was the lawfulness of the search of the appellant’s vehicle. The particular matters, which the trial judge was called upon to determine, were, firstly, whether the appellant had consented to the search, and, secondly, if he had not, whether the search was authorised under s 357 of the Crimes Act. Because in my view the attack upon his Honour’s finding on the first of those matters lacks any merit, it is unnecessary to refer in detail to the second. However, the particular question arising under that provision was whether the police officer had reasonable grounds to suspect that the appellant was in possession of a pistol in the motor vehicle. The evidence given by Constable Zimmerman was that on 29 May 1997, while on patrol in a police vehicle, he saw a Commodore vehicle turn right at a set of traffic lights. As it did so, the four occupants looked toward the police vehicle. The officer thought that this was unusual and requested that the driver of the police car, Constable Grosse, follow the vehicle. Constable Zimmerman made a check of the registration number of the vehicle and was informed that the registration had been cancelled for fine default. The siren of the police car was activated and in response the vehicle pulled over to the side of the road. The appellant was in the front passenger seat when the police officers approached the vehicle. A conversation took place between the officer and the appellant in relation to the status of his licence. After making some inquiries, the officer informed the appellant that his licence had been cancelled and that the appellant had been made aware of that fact some days earlier by the highway patrol. The appellant was then asked whether he held a current pistol licence and, according to Constable Zimmerman, he confirmed that he did. Constable Zimmerman gave evidence that the appellant at this time appeared “very agitated, very nervous” and was “shuffling from foot to foot”. The officer formed the view that the appellant might be carrying a pistol and decided to search the motor vehicle to look for “anything illegal that didn’t belong to him that I should know about”. He said that this included a pistol. According to the officer the following conversation took place:“I’m now going to search your car. Is there anything in the car that is illegal or does not belong to you that I should know about?”The [appellant] then said: “No, go ahead and search it.”The appellant, at the officer’s request, opened the boot of the vehicle and the constable then made a search, locating the computer bag containing the tablets.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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