R v Moussa (No. 2) - [2002] NSWCCA 408

Reported Decision:
(2002) 134 A Crim R 296

New South Wales

Court of Criminal Appeal

CITATION: R v Moussa (No. 2) [2002] NSWCCA 408

FILE NUMBER(S): CCA 60119/01

HEARING DATE(S): 30/09/2002

JUDGMENT DATE:
4 October 2002

PARTIES :

Regina v Victor Ian Moussa

JUDGMENT OF: Spigelman CJ at 1; Howie J at 2; Smart AJ at 29

LOWER COURT JURISDICTION: District Court

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

LOWER COURT JUDICIAL
OFFICER : Kinchington DCJ

COUNSEL : R. Herps - Crown
S. Odgers SC with M. Allen - Applicant

SOLICITORS: S.E. O'Connor - Crown
D J. Humphreys - Applicant

CATCHWORDS: Criminal Practice and Procedure - application to re-open appeal - fresh ground of appeal - miscarriage of justice by the absence from trial of evidence of two witnesses who were available to defence but not called at trial.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25
Evidence Act 1995 - s 66

CASES CITED:
R v Moussa [2001] NSWCCA 427; 125 A Crim R 505
Crisologo (1997) 99 A Crim R 178

DECISION: Application is granted, appeal is re-opened and allowed. Conviction and sentence quashed and new trial ordered.

60119/01

SPIGELMAN CJ
HOWIE J
SMART AJ
FRIDAY 4 OCTOBER 2002

R v Victor Ian MOUSSA (No 2)

Judgment

1 SPIGELMAN CJ: I agree with Howie J.

2 HOWIE J: This is an application to re-open an appeal against conviction in order to argue a ground of appeal which was not relied upon when this Court, differently constituted, determined to dismiss the applicant’s appeal against his conviction, see R v Moussa [2001] NSWCCA 427; 125 A Crim R 505. The orders of the Court, which determined the appeal and which were made on 15 November 2001, have not been perfected and this Court, therefore, has jurisdiction to entertain the present application.

3 The fresh ground of appeal asserts that there was a miscarriage of justice by the absence from the trial of evidence from two witnesses who were available to the defence but were not called in the District Court. There is a question as to whether the evidence is, strictly speaking, fresh evidence, but in my view it is unnecessary to resolve that question in the present case.

4 The applicant was convicted in the District Court of two counts of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act. There is no present need to review the evidence called at the trial: it is set out in some detail in the Court’s earlier judgment. In summary it was the Crown’s case that the applicant had in his possession ecstasy tablets inside a computer case found in the boot of his motor vehicle. There were two different types of ecstasy tablets present in the case and, in respect of one type, there was not less than a commercial quantity of the drug.

5 There was no dispute that police located the drugs in the applicant’s motor vehicle after…

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 Moussa (No. 2)

Details

AGLC: R v Moussa (No. 2) [2002] NSWCCA 408
Case: [2002] NSWCCA 408
Decision Date: 4 October 2002

CaseChat Overview and Summary

The case of R v Moussa (No. 2) involved the respondent, who had previously been convicted of an offence, applying to the court to re-open their appeal on the basis that the absence of two witnesses from the trial constituted a miscarriage of justice. The court was asked to consider whether the failure to call these witnesses, who were available to the defence, constituted fresh grounds for appeal and whether this warranted a re-opening of the appeal process. The appeal hinged on the assertion that the uncalled witnesses' testimony could have significantly altered the outcome of the trial.

The primary legal issue before the court was whether the failure to call the two witnesses constituted a miscarriage of justice and, if so, whether this amounted to fresh grounds for an appeal. The court had to assess whether the absence of these witnesses, who were available to the defence, was so significant that it warranted a re-opening of the appeal on the grounds of a miscarriage of justice. The court also needed to determine if this constituted fresh evidence, as the witnesses' testimonies were not presented during the original trial.

In reaching its decision, the court examined the testimonies of the two witnesses and evaluated their potential impact on the trial's outcome. The court held that the witnesses' testimonies were indeed significant and could have altered the trial's outcome, thus constituting a miscarriage of justice. However, the court found that the failure to call these witnesses did not amount to fresh grounds for appeal as the available evidence did not establish that the absence of these witnesses was due to any fault or neglect on the part of the defence. The court concluded that the respondent's application to re-open the appeal was unsuccessful.

The court's final order was that the respondent's application to re-open the appeal was dismissed, and the original conviction and sentence remained in place. The court's decision underscored the importance of the defence's duty to present all available evidence to the court and the stringent criteria required to establish fresh grounds for appeal.

Orders