R v Shafiei - [2000] NSWCCA 254

Reported Decision: 115 A Crim R 45

New South Wales

Court of Criminal Appeal

CITATION: R v Shafiei [2000] NSWCCA 254

FILE NUMBER(S): CCA 60319/99

HEARING DATE(S): 07/07/00

JUDGMENT DATE:
14 July 2000

PARTIES :

Regina v Ali Shafiei

JUDGMENT OF: Fitzgerald JA at 1; Sperling J at 8; Whealy J at 9

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0966

LOWER COURT JUDICIAL
OFFICER : Viney DCJ

COUNSEL : Mr W Roser - Crown
Mr R. Button - Appellant

SOLICITORS: Commonwealth DDP
Legal Aid Commission of NSW

LEGISLATION CITED: Criminal Appeal Act 1912
Customs Act 1901 (C'Wealth)
Criminal Appeal Rules 1952
Evidence Act 1995

CASES CITED:
Kingswell v The Queen (1985) 159 CLR 264;
The Queen v Meaton (1986) 160 CLR 359;
Cheng & Chan Vol 107 Pt 4 ACR 460;
The Queen v Yuill (1994) 77 A Crim R 314 at 320;
Tripodina, Morabito (1988) 35 A Crim R 183 at 195.

DECISION: (1) Leave be granted pursuant to rule 4; (2) Appeal allowed; (3) Verdict of the jury of 14 April 1999 is set aside; (4) There is to be a new trial.

IN THE COURT

OF CRIMINAL APPEAL

60319/99

FITZGERALD JA
SPERLING J
WHEALY J

FRIDAY 14 July 2000

REGINA v Ali SHAFIEI

JUDGMENT

1 FITZGERALD JA: The circumstances giving rise to this application and appeal are set out in the reasons for judgment of Whealy J. 2 The central importance of the circumstance of aggravation alleged in the indictment against the appellant, namely, that the quantity of opium which he had in his possession was not less than the trafficable quantity, is easily demonstrated. The maximum period of imprisonment applicable if the quantity of opium which the appellant had in his possession was not less than the trafficable quantity was 25 years, Customs Act 1901 (Cwth), s 235(2)(d)(i).. If the quantity of opium which the appellant had in his possession was less than the trafficable quantity, the maximum period of imprisonment to which he could lawfully have been sentenced was 2 years. Customs Act, s 235(2)(e). The appellant was sentenced to imprisonment for 6 ½ years. 3 At the appellant’s trial, the judge, the prosecution and the appellant all proceeded on the basis that the quantity of opium which had been imported, and which the appellant intended to receive and possess, which was considerably in excess of a trafficable quantity, was the quantity which the appellant did possess. Although the prosecution maintained that position in this Court, no relevant authority in support was cited. Uncomplicated by authority, the language of the material section Customs Act, s 233(B) (1)(c) seems clear. The offence of which the appellant was convicted is concerned with what an accused person actually possessed, not with what he or she intended to possess. 4 The prosecution submitted that it is contrary to the public interest to give the section that meaning. However, there is no substance in that argument. Schedule VI of the Customs Act

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 Shafiei

Details

AGLC: R v Shafiei [2000] NSWCCA 254
Case: [2000] NSWCCA 254
Decision Date: 14 July 2000

CaseChat Overview and Summary

In the case of Regina v Ali Shafiei, the New South Wales Court of Criminal Appeal was called upon to review a conviction and sentence in relation to the possession of a prohibited import, specifically opium, in contravention of the Customs Act 1901. The central issue revolved around whether the quantity of opium the appellant possessed was not less than the trafficable quantity, a fact pivotal to the severity of the penalty. The appeal was primarily concerned with whether the trial judge misdirected the jury regarding the necessity to prove the quantity of opium in the appellant’s possession and whether this constituted a mistrial warranting a new trial.

The appellant, Ali Shafiei, was convicted of possessing opium that was not less than the trafficable quantity, a critical element that significantly increased the potential penalty. The court noted that the prosecution failed to present evidence proving the quantity of opium actually in the appellant's possession at the time of the offence, despite the appellant's admission regarding the importation and the contents of the parcel. The trial judge's direction to the jury implied that the appellant's admissions covered the quantity in his possession, which was legally incorrect as the offence pertains to the actual quantity possessed, not the intended quantity. This misdirection was fundamental and went to the essence of the conviction.

The Court of Criminal Appeal found that the misdirection by the trial judge was a departure from the essential requirements of the law, warranting the grant of leave to appeal. Given the absence of evidence on the critical issue of the quantity of opium actually possessed by the appellant, the Court concluded that a substantial miscarriage of justice had occurred, leading to the allowance of the appeal. The verdict was set aside, and a new trial was ordered to rectify the error. The Court emphasised the importance of proving the actual quantity of the substance possessed to determine the correct application of the law and appropriate penalty.

Orders