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11
Court of Criminal Appeal 13 December 2001

R v ABDALLAH

[2001] NSWCCA 506

Also reported as (2001) 127 A Crim R 46
Drugs
DIRECTIONS TO JURY APPROPRIATE DIRECTIONS DIRECTION ON LIES

Citation: R v Abdallah [2001] NSWCCA 506
Court: NSW Court of Criminal Appeal
Date: 13 December 2001
Judges: Sheller JA, Dowd J, Kirby J

Background

The appellant was convicted in the District Court of being knowingly concerned in the importation of a trafficable quantity of cocaine, contrary to the Customs Act 1901. The cocaine had been concealed in a suitcase inside a package collected from the airport by the appellant and a co-accused. The co-accused pleaded guilty; the appellant maintained he had no knowledge of any drugs in the package.

The central factual question at trial was whether the appellant knew the package contained cocaine. His case was that he believed the package held clothing and only began to suspect narcotics after the package was opened.

An inconsistency emerged during the trial between two accounts of when the appellant first learned the package was arriving. His counsel's opening address suggested the appellant knew about the package on Friday 8 January 1999, whereas the appellant's own evidence said he had no knowledge of it until Monday 11 January, when he accompanied the co-accused to collect it.

  • Whether the trial judge's directions to the jury about the inconsistency between counsel's opening address and the appellant's evidence were appropriate, having regard to the principles in R v Birks (1990) 19 NSWLR 677.
  • Whether the trial judge was required to give a direction on the use of lies, consistent with the High Court's guidance in Zoneff v The Queen (2000) 200 CLR 234, in circumstances where the Crown and trial judge had suggested the appellant "could not get his story straight."

Decision

On the first ground, the Court of Criminal Appeal found that the trial judge's directions were inconsistent with the approach required by R v Birks. That case requires that, where an inconsistency arises between counsel's opening and the accused's own evidence, the jury must be warned that there are explanations for that inconsistency other than the accused having changed his story. No such warning was given.

Because the appellant's credibility was the central issue at trial, the misdirection was not merely technical. The Court held that the failure to properly direct the jury on this point led to a miscarriage of justice, and this ground alone was sufficient to uphold the appeal.

On the second ground, concerning the direction on lies under Zoneff, the Court acknowledged the appellant's argument that both the Crown and the trial judge had effectively suggested the accused was lying, creating a risk the jury would reason impermissibly from that. However, because the first ground was already sufficient to dispose of the appeal, the Court declined to explore the full scope of the Zoneff principle in this case.

Orders Made

  • Appeal upheld.
  • Verdict quashed and a new trial ordered.

Key Takeaways

  • Where an inconsistency arises between defence counsel's opening address and the accused's subsequent evidence, the jury must be directed that there are possible explanations for that inconsistency beyond the accused having changed their story, as required by R v Birks (1990) 19 NSWLR 677.
  • A failure to give that direction will amount to a miscarriage of justice where the accused's credibility is the central issue at trial.
  • The Court of Criminal Appeal confirmed that an opening address by counsel is not the accused's own evidence, and the jury must not be left to treat inconsistencies between the two as straightforward admissions of a change in story.
  • Zoneff v The Queen (2000) 200 CLR 234 establishes that, where there is a risk a jury may reason impermissibly from suggested lies, a carefully tailored direction is required, though the precise scope of this obligation in every case was left open in this decision.
  • Sufficient error in one ground of appeal can make it unnecessary to resolve additional grounds, as occurred here when the misdirection on the opening address disposed of the appeal without requiring a ruling on the lies direction.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B

Cases:
- R v Birks (1990) 19 NSWLR 677
- Zoneff v The Queen (2000) 200 CLR 234
- Edwards v The Queen (1993) 178 CLR 193
- Wong v The Queen; Leung v The Queen [2001] HCA 64
- R v Wong; R v Leung (1999) 48 NSWLR 340
- R v Manunta (1989) 54 SASR 17
- Browne v Dunn (1893) 6 R 67