Shah v The King - [2024] NSWCCA 113

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shah v R [2024] NSWCCA 113
Hearing dates: 15 March 2024
Decision date: 08 July 2024
Before: Stern JA at [1]
Rothman J at [2];
Button J at [3]
Decision:
(1) Leave to appeal out of time granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction – attempt to possess marketable quantity of border controlled drug – where appellant attempted to gain possession of consignment sent from the Republic of South Africa – parcel interior lined with cocaine – consignee name slightly different from that of the appellant – addressed to apartment block resided in by the appellant but different unit number – earlier uncharged consignment sent from the Republic of South Africa using same altered name and incorrect unit number admitted as coincidence evidence – whether miscarriage of justice occasioned by decision to admit coincidence evidence – where proceedings commenced prior to statutory test being amended – whether probative value “substantially outweighs” prejudicial effect – evidence correctly admitted – appeal dismissed

Legislation Cited:
Criminal Appeal Act 1912 (NSW) s 5(1)(a)
Criminal Code 1995 (Cth) ss 11.1(1), 307.6(1)
Evidence Act 1995 (NSW) ss 98, 101; sch 2 pt 6 cl 28

Cases Cited:
R v Bauer (A Pseudonym) (2018) 266 CLR 56; [2018] HCA 40
R v Gale; R v Duckworth (2012) 217 A Crim R 487; [2012] NSWCCA 174
R v Shah (No 1) [2022] NSWDC 707
R v Zhang (2005) 158 A Crim R 504; [2005] NSWCCA 437
Stephens v R (2022) 273 CLR 635; [2022] HCA 31
Su v R [2023] NSWCCA 21

Category: Principal judgment
Parties: Abdul Malik Shah (Appellant)
Rex (Respondent)
Representation:
Counsel:
Mr A Chhabra with Mr W Bruffey (Appellant)
Ms G Wright SC with Ms G Marsden (Respondent)
Solicitors:
William O’Brien & Ross Hudson Solicitors (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2019/162030
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 April 2022

Before:

Sutherland SC DCJ

File Number(s):

2019/00162030

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 28 April 2022, Mr Abdul Malik Shah (the appellant) was found guilty of attempting to possess a marketable quantity of a border controlled drug, namely cocaine, contrary to ss 11.1(1) and 307.6(1) of the Criminal Code Act 1995 (Cth).

On the evidence presented at trial, the appellant had attempted to gain possession of a parcel sent from the Republic of South Africa to an address in Wiley Park, a suburb of Sydney. The parcel was addressed to an “Abdul Sheh” (a name almost identical to that of the appellant) living at unit 4/1089-1101 Canterbury Road (a different unit in the same apartment building in which the appellant resided). Though the parcel appeared to contain fabric, the interior walls were, in fact, lined with packages containing a total of 332.2g of cocaine.

The appellant was sentenced to a term of imprisonment…

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 Shah v The King

Details

AGLC: Shah v The King [2024] NSWCCA 113
Case: [2024] NSWCCA 113
Decision Date: 08 July 2024

CaseChat Overview and Summary

In the case of Shah v The King, the appellant contested his conviction for attempting to possess a marketable quantity of a border-controlled drug. The dispute arose from the appellant's attempt to obtain a consignment sent from the Republic of South Africa. The parcel was discovered to have its interior lined with cocaine. Although the consignee name was slightly different from the appellant's and the unit number was incorrect, the consignment was addressed to the apartment block in which the appellant resided. The court had to consider whether the admission of an earlier uncharged consignment, sent from the same country using the same altered name and incorrect unit number, as coincidence evidence, led to a miscarriage of justice. Additionally, the court had to determine whether, given that the proceedings commenced before the statutory test was amended, the probative value of the coincidence evidence substantially outweighed its prejudicial effect.

The court held that the coincidence evidence was correctly admitted under the statutory test applicable at the time of the trial. The court reasoned that the probative value of the coincidence evidence substantially outweighed its prejudicial effect. The court found that the similarity in the details of the two consignments, particularly the use of an altered name and incorrect unit number, provided significant evidence linking the appellant to the drug possession attempt. The court also noted that the coincidence evidence was relevant to the appellant's state of mind and intent, which were crucial elements of the charge against him. Consequently, the court dismissed the appeal.

The court's decision to dismiss the appeal means that the appellant's conviction for the drug possession attempt stands. The court's reasoning focused on the relevance and probative value of the coincidence evidence in establishing the appellant's connection to the consignment. The court's decision highlights the importance of considering the specific circumstances of each case when evaluating the admissibility of coincidence evidence.

Orders