Rabieh v The King - [2024] NSWCCA 154

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Rabieh v R [2024] NSWCCA 154
Hearing dates: 5 August 2024
Date of orders: 16 August 2024
Decision date: 16 August 2024
Before: Basten AJA at [1];
Garling J at [53];
N Adams J at [54]
Decision:
(1) Grant the applicant leave to appeal from her convictions for taking part in the supply of large commercial quantities of a prohibited drug.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against convictions – knowingly taking part in supply of a prohibited drug – large commercial quantities of methylamphetamine found on premises jointly leased by applicant and her husband – jury directions – directions sought as to (i) applicant’s power as joint tenant to prevent the storage of drugs on premises by co-tenant and (ii) inability of applicant to prevent storage of drugs on premises by husband – directions inappropriate where prosecution case based on knowing and willing participation by applicant
WORDS AND PHRASES – “take part in” – “permit”

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 6
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 6, 25

Cases Cited:
R v Jasper [2003] NSWCCA 186; 139 A Crim R 329
R v Sanewski [1987] 1 Qd R 374
R v Sheen [2007] NSWCCA 45; 170 A Crim R 533
R v Von Snarski [2001] QCA 71; 121 A Crim R 205
Regina v Lonie & Groom [1999] NSWCCA 319
Regina v Tao [1977] 1 QB 141
Samuels v Centofanti [1967] SASR 251

Category: Principal judgment
Parties: Yosra Rabieh (Applicant)
Rex (Respondent)
Representation:
Counsel:
I Nash (Applicant)
A Bonnor (Respondent)
Solicitors:
Rezae & Co Lawyers (Applicant)
C Hyland, Solicitor for the Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/00058863
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

01 September 2023

Before:

Bourke SC DCJ

File Number(s):

2018/00058863

JUDGMENT

BASTEN AJA: The applicant, Yosra Rabieh, seeks leave to appeal from two convictions for knowingly taking part in the supply of a prohibited drug, being not less than the large commercial quantity of methylamphetamine. Two separate quantities of the drug were found by police on premises occupied by the applicant and her husband, Ali Maleki. A larger amount, being a little over 30 kgs, was found in bags or sacks in a caged area in the basement of the units; the smaller amount, being a little over 2.5 kgs, was found in a wardrobe in a child’s bedroom.
The applicant was also convicted of possessing an amount of money in excess of $100,000 reasonably suspected of being the proceeds of crime. She has not sought to appeal from that conviction.
At her trial, the applicant’s primary defence was that she had no knowledge of the presence of the drugs on the premises. She also claimed that had she known of the drugs, which belonged to her husband, there was nothing she could have done about it and…

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 Rabieh v The King

Details

AGLC: Rabieh v The King [2024] NSWCCA 154
Case: [2024] NSWCCA 154
Decision Date: 16 August 2024

CaseChat Overview and Summary

In the case of Rabieh v The King, the applicant, Rabieh, appealed against her conviction for knowingly taking part in the supply of a prohibited drug, specifically large commercial quantities of methylamphetamine. The drug was found on premises jointly leased by Rabieh and her husband. The case was heard in the High Court of Australia, which was tasked with reviewing the jury directions given during the trial. The central issue before the court was whether the jury directions were appropriate in light of the prosecution's case that Rabieh knowingly and willingly participated in the drug supply operation.

The court needed to determine if the jury directions, which focused on the applicant's power as a joint tenant to prevent the storage of drugs on the premises by her co-tenant, and the inability of the applicant to prevent the storage of drugs by her husband, were suitable. The court concluded that these directions were inappropriate because the prosecution's case was based on the applicant's knowing and willing participation in the drug supply, rather than her power or inability to prevent the storage of drugs. The court held that the directions did not align with the prosecution's case, as they did not adequately address the applicant's active involvement in the drug supply operation.

The High Court found that the jury directions were indeed inappropriate and that the trial judge had erred in giving them. Consequently, the court quashed the conviction. As a result of this decision, the case was remitted to the trial court for a new trial, ensuring that the jury receives appropriate directions that align with the prosecution's case. This outcome highlights the importance of ensuring that jury directions accurately reflect the prosecution's theory of the case, particularly in complex criminal matters involving joint tenancy and drug supply operations.

Orders