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Radi v The Queen

Radi v The Queen

Case [2010] NSWCCA 265 19 November 2010

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New South Wales
Court of Criminal Appeal

CITATION: RADI v R [2010] NSWCCA 265

HEARING DATE(S): 20 October 2010

JUDGMENT DATE:
19 November 2010

JUDGMENT OF: Simpson J at 1; Hoeben J at 9; RA Hulme J at 55

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - conviction appeal - supply of prohibited drug - issue at trial whether appellant in possession of drugs - whether evidence of bullets found in car of appellant should have been admitted - whether such evidence relevant - whether such evidence went only to tendency towards criminality - whether trial judge should have given a tendency direction - evidence properly admitted and no tendency direction required.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

CATEGORY: Principal judgment

CASES CITED: He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523
RG v R [2010] NSWCCA 173
Thompson and Wran v R [1968] HCA 21; 117 CLR 313

PARTIES: Vasil Radi - Appellant
Crown - Respondent

FILE NUMBER(S): CCA 2008/989

COUNSEL: Mr SJ Odgers SC - Appellant
PG Ingram SC - Respondent Crown

SOLICITORS: Martin Ricci - Appellant
S Kavanagh, Solicitor for Public prosecutions - Respondent Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/21/0004

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 25 September 2008

2008/989

SIMPSON J
HOEBEN J
RA HULME J
Friday 19 November 2010

Vasil RADI v R

Judgment

1 SIMPSON J: I have read in draft, and agree with, the judgment of Hoeben J, and also the additional observations of R A Hulme J. In respect of all grounds of appeal, I would add this (in order to distinguish the circumstances of this case from those in Thompson and Wran v R [1968] HCA 21; 117 CLR 313).

2 The appellant was charged under s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the Act”) with supplying not less than the commercial quantity of methylamphetamine. The highest the prosecution could put its case by direct evidence was that the appellant was in physical possession of the drug in a black bag, at the time of his arrest. By s 29 of the Act, given the quantity of drug involved, possession is deemed to be for the purpose of supply unless the appellant brought himself within one of the exceptions provided by that section (which the appellant did not attempt to do). By reason of the very extensive definition of supply in s 3 of the Act, possession for the purpose of supply constitutes supply.

3 Notwithstanding the appellant’s physical possession of the drug, it was also necessary that the Crown establish, to the criminal standard, that the appellant knowingly had that physical possession: He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523.

4 On his arrest the appellant was invited to participate in an interview with police, but this he declined to do. Accordingly, the Crown was…

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 Radi v The Queen

Details

AGLC: Radi v R [2010] NSWCCA 265
Case: [2010] NSWCCA 265
Decision Date: 19 November 2010

CaseChat Overview and Summary

In the matter of Radi v The Queen, the appellant sought to appeal his conviction for supplying a prohibited drug. The appeal centred on the admissibility of evidence found during a search of the appellant's vehicle, specifically bullets, and whether the trial judge should have provided a direction regarding the tendency of such evidence. The case was heard in the High Court of Australia.

The primary legal issue before the court was whether the evidence of the bullets found in the appellant's car was relevant to the charge of supplying a prohibited drug and, if so, whether the trial judge should have given a direction to the jury that the evidence could only be considered for its probative value in relation to the charge and not for any propensity towards criminal conduct. The appellant argued that the evidence should have been excluded as irrelevant and prejudicial, and that a tendency direction should have been given.

The court held that the evidence of the bullets was relevant to the charge of supplying a prohibited drug, as it could be inferred that the possession of bullets by a drug supplier was indicative of a lifestyle involving potential violence. The court further held that while the evidence had some tendency towards showing a propensity to criminal conduct, it was not so significant as to warrant a tendency direction. The trial judge had correctly admitted the evidence and did not need to provide a direction regarding its use by the jury.

The appeal was dismissed, and the conviction was upheld. The court found that the evidence of the bullets was properly admitted and that no tendency direction was required. The appellant's conviction for supplying a prohibited drug was affirmed.

Orders