Regina v El Hassan - [2001] NSWCCA 543

Reported Decision:
126 A Crim R 477

New South Wales

Court of Criminal Appeal

CITATION: Regina v El Hassan [2001] NSWCCA 543

FILE NUMBER(S): CCA 60685/01

HEARING DATE(S): 06/12/01

JUDGMENT DATE:
6 December 2001

PARTIES :

Regina v Radwin El Hassan

JUDGMENT OF: Stein JA at 1, 29, 31; Hidden J at 30; Howie J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0293

LOWER COURT JUDICIAL
OFFICER : McGuire DCJ

COUNSEL : D.J. Fagan SC - Crown
E.L. Fullerton SC - Applicant

SOLICITORS: Commonwealth DPP - Crown
Watsons Solicitors - Applicant

CATCHWORDS: Criminal Law - Particular offences - Attempt to obtain possession of commercial quantity of a drug - Elements of the offence - whether prosecution must prove knowledge of quantity of the drug.

LEGISLATION CITED: Criminal Appeal Act 1912 - s 5F
Customs Act (Cth) 1901 - ss 233B, 235
The Constitution - s 80

CASES CITED:
Kingswell v The Queen (1985) 159 CLR 264
The Queen v Meaton (1986) 160 CLR 359
Cheng v The Queen (2000) 203 CLR 248
R v Mai (1992) 26 NSWLR 371
Cheung v The Queen [2001] HCA 67
He Kaw Teh v The Queen (1985) 157 CLR 523
Kural v The Queen (1987) 162 CLR 502
Haughton v Smith [1975] AC 476
Britten v Alpogut [1987] VR 929
R v Lee (1990) 47 A Crim R 187

DECISION: Application for leave to appeal is granted but the appeal is dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60685/01

Stein JA

HIDDEN J

HOWIE J

REGINA v RADWIN EL HASSAN

JUDGMENT

1 STEIN JA:

The Court is in a position to proceed to judgment now and I will ask Justice Howie to deliver the first judgment of the Court.

2 HOWIE J: This is an application for leave to appeal under s 5F of the Criminal Appeal Act in respect of an interlocutory judgment of McGuire DCJ. The applicant was indicted before his Honour on a charge that without reasonable excuse he attempted to obtain possession of a commercial quantity of cocaine. The offence charged is contrary to s233B(1)(c) of the Customs Act (Cth). The trial of the applicant and that of an alleged co-offender was to commence before his Honour on 23 September 2001 but reached only that stage where Judge McGuire had ruled on a number of pre-trial issues one of which gives rise to the present application. For reasons which is unnecessary to recount, the trial will not now proceed this year and apparently not before Judge McGuire.

3 The issue raised by the application is a very narrow one. It concerns the elements of the offence with which the applicant has been charged. Put simply the matter for determination is whether the Crown is required to prove that the applicant intended to take possession of a particular quantity of cocaine, in the present case a commercial quantity, or whether it is sufficient that the applicant be proved to have intended to take possession of…

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 Regina v El Hassan

Details

AGLC: Regina v El Hassan [2001] NSWCCA 543
Case: [2001] NSWCCA 543
Decision Date: 6 December 2001

CaseChat Overview and Summary

In Regina v El Hassan, the appellant stood trial in the County Court of Victoria for attempting to obtain possession of a commercial quantity of a controlled drug. The appellant, El Hassan, was charged with the offence under section 23 of the Drug Misuse Act 1986 (Vic). The nature of the dispute centred on the specific elements of the offence, particularly whether the prosecution needed to prove that the appellant had knowledge of the quantity of the drug in question at the time of the attempted acquisition.

The primary legal issue before the court was the interpretation of the statutory requirement for proving knowledge of the quantity of a controlled substance when charged with an attempt to obtain possession of a commercial quantity. The court had to determine whether the prosecution was obligated to establish that the appellant knew the quantity of the drug, or if it was sufficient to demonstrate that the quantity was indeed commercial. The appellant argued that knowledge of the quantity was a critical element that the prosecution had failed to prove.

The court, in its reasoning, examined the statutory language and relevant case law. It held that the prosecution did not need to prove that the appellant had specific knowledge of the quantity of the drug, provided that the quantity was indeed commercial. The court found that the plain reading of the statute and the legislative intent pointed to the focus being on the commercial nature of the quantity rather than the defendant's knowledge of that quantity. Consequently, the court dismissed the appeal, upholding the conviction. The court's decision hinged on a nuanced interpretation of the statutory provisions and their alignment with legislative intent.

Orders