Citation: R v Moussa [2001] NSWCCA 427
Court: New South Wales Court of Criminal Appeal
Date: 15 November 2001
Judge(s): Giles JA, Howie J, Carruthers AJ
Background
The appellant was convicted in the District Court on two counts of supplying a prohibited drug (ecstasy) under the Drug Misuse and Trafficking Act 1985. He had been a passenger in a motor vehicle stopped by police after the vehicle's registration was found to be cancelled. Police searched the vehicle and found ecstasy tablets in a computer case in the boot.
The Crown's case rested on evidence that the appellant made admissions when the drugs were found. The appellant denied any knowledge of the computer case or its contents and suggested another person, who had previously borrowed the vehicle, must have left it there. The trial turned substantially on whether the jury accepted the police officers' account of what occurred after the vehicle was stopped.
On sentencing, the appellant received four and a half years imprisonment with a three-year non-parole period on the first count, and a fixed three-year term on the second count. He appealed against conviction only.
Legal Issues
- Whether the search of the appellant's vehicle was lawful, either by consent under the Evidence Act 1995 or under s 357 of the Crimes Act 1900, and whether the trial judge erred in admitting the evidence obtained from it
- Whether the appellant's admission after the drugs were found was admissible, including whether there was a "reasonable excuse" for the failure to record the conversation as required by s 424A of the Crimes Act 1900
- Whether the trial judge erred in the summing-up by failing to give a Zoneff direction (a direction guiding the jury on how to use evidence of lies told by the accused) in relation to a forged document tendered by the defence
- Whether the Court should grant leave under Criminal Appeal Rules, rule 4, to raise a ground of appeal not raised at trial, and what relevance an affidavit from trial counsel had to that application
Decision
Lawfulness of the search: The Court found no merit in the attack on the trial judge's finding that the appellant had consented to the search. Because that finding was sound, it was unnecessary to resolve in detail whether s 357 of the Crimes Act independently authorised the search. The evidence obtained from the search was therefore properly admitted.
Admissibility of the admission: The trial judge found a reasonable excuse existed for the failure to record the conversation in accordance with s 424A. The Court upheld that finding, and the admission evidence remained before the jury.
Zoneff direction on lies: A document (Exhibit 1) tendered by the defence during trial was ultimately conceded to be a forgery. The appellant argued on appeal that the trial judge should have directed the jury, in accordance with the principles in Zoneff v The Queen (2000) 200 CLR 234, on how to use that evidence of lies. No such direction had been requested at trial. The Court held that, while the trial judge could have given such a direction, the failure to do so did not, in the circumstances of the case, give rise to any possibility of a miscarriage of justice. Trial counsel had evidently been satisfied that the summing-up fairly presented the real issue; an additional direction might in fact have distracted the jury to the appellant's disadvantage.
Leave under rule 4 and trial counsel's affidavit: Because the Zoneff ground had not been raised at trial, the appellant needed leave under rule 4 of the Criminal Appeal Rules. The Court refused leave, having concluded there was no risk of miscarriage of justice. Howie J (with Carruthers AJ expressly agreeing) expressed reservations about the practice of providing this Court with affidavits sworn by trial counsel to explain or justify decisions made during the conduct of a trial.
Orders Made
- The appeal is dismissed.
Key Takeaways
- In dismissing the appeal, the Court confirmed that a finding of consent to a vehicle search, if properly supported by evidence at a voir dire, will defeat a challenge to admissibility without any need to resolve whether a separate statutory search power also applied.
- Under s 424A of the Crimes Act 1900, a failure to record a police conversation with a suspect does not automatically render an admission inadmissible; a finding of "reasonable excuse" for that failure, if available on the evidence, can sustain admissibility.
- Where an accused's lies are in evidence, a trial judge may be expected to give a Zoneff direction, but the failure to do so will not automatically constitute a miscarriage of justice, particularly where no direction was requested at trial and counsel appeared content with the summing-up.
- Leave to raise a ground under rule 4 of the Criminal Appeal Rules requires the Court to be satisfied there is a possibility of a miscarriage of justice; an unexplained tactical decision by experienced trial counsel to forgo a direction will weigh against that finding.
- The Court (per Howie J, endorsed by Carruthers AJ) signalled discomfort with the practice of placing before the Court of Criminal Appeal affidavits from trial counsel explaining or justifying forensic decisions made at trial.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985
- Crimes Act 1900, ss 357, 424A
- Evidence Act 1995, ss 86, 138
- Criminal Procedure Act 1986, s 108
- Criminal Appeal Rules, rule 4
Cases:
- Zoneff v The Queen (2000) 200 CLR 234
- Edwards v The Queen (1993) 178 CLR 193
- Osland v The Queen (1998) 197 CLR 316
- R v Kyriakou (1987) 29 A Crim R 50
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Khousame [2000] NSWCCA 505
- DPP v Leonard [2001] NSWSC 797
- R v Horton (1998) 45 NSWLR 426
- R v Esposito (1998) 45 NSWLR 442
- R v Hines (1991) 24 NSWLR 737
- R v Abusafiah (1991) 24 NSWLR 531
- R v Birks (1990) 19 NSWLR 677
- R v Roberts [2001] NSWCCA 163
- R v GJH [2001] NSWCCA 128
- Dat Tuan Nguyen (2001) 118 A Crim R 479
- R v Galea [2001] NSWCCA 270
- R v Dhanhoa [2001] NSWCCA 293