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Court of Criminal Appeal 4 October 2002

R v Moussa (No. 2)

[2002] NSWCCA 408

Also reported as (2002) 134 A Crim R 296
Drugs
CRIMINAL PRACTICE AND PROCEDURE APPLICATION TO RE OPEN APPEAL FRESH GROUND OF APPEAL

Citation: Moussa (No. 2) v R [2002] NSWCCA 408
Court: NSW Court of Criminal Appeal
Date: 4 October 2002
Judge(s): Spigelman CJ; Howie J; Smart AJ

Background

The applicant had been convicted in the District Court of two counts of supplying a prohibited drug (ecstasy tablets) under the Drug Misuse and Trafficking Act 1985. Police found the tablets in a computer case in the boot of his vehicle during a roadside search. The central issue at trial was whether the applicant had verbally admitted ownership of the drugs and knowledge of their nature during that search, as officers alleged.

The applicant denied making those admissions and gave evidence that he was unaware the computer case was in his vehicle. His credibility was significantly damaged at trial when a document tendered as a defence exhibit was found to be a forgery, and his explanation for possessing it was unconvincing. The alleged verbal admissions were not electronically recorded.

The applicant had already appealed and lost, with the Court of Criminal Appeal dismissing his appeal on 15 November 2001. Those orders had not yet been formally perfected, preserving the Court's jurisdiction to entertain a fresh application. The applicant now sought to re-open that appeal on a new ground not raised at the earlier hearing: that two witnesses, available to the defence at trial but not called, could have given evidence whose absence created a miscarriage of justice.

  • Whether the Court had jurisdiction to re-open the appeal given that its earlier orders had not been formally perfected
  • Whether the failure to call two available defence witnesses at trial gave rise to a miscarriage of justice
  • Whether the fresh evidence ground could be raised despite the witnesses having been known to the defence at the time of trial
  • Whether the absence of that evidence, considered in the context of the whole Crown case, created a reasonable possibility that the applicant was wrongly convicted

Decision

The Court confirmed it had jurisdiction to re-open the appeal because the orders from the earlier hearing had not been formally perfected. Howie J, with Spigelman CJ agreeing, noted that while there was a question about whether the evidence was strictly "fresh" (given it was known to exist at the time of trial), it was unnecessary to resolve that classification to determine the application.

The two witnesses were the applicant's cousin, Eddie Dib, who was present at the roadside search, and a man named Mr Scevola. Dib's proposed evidence related to the applicant's conduct during the search and statements the applicant made after police left the scene. The latter category of evidence was admissible hearsay under s 66 of the Evidence Act 1995. Crucially, Dib's affidavit indicated he could not actually hear the conversation between the applicant and police at the boot of the vehicle, which the Court considered cut against the Crown's account of an unambiguous oral admission.

The Court placed particular emphasis on Mr Scevola's proposed evidence. Scevola could give evidence that independently undermined the reliability of the alleged admissions, and his absence was explained by the fact that he had been required to travel overseas during the trial period. Howie J found this evidence was especially significant because the Crown case rested almost entirely on uncorroborated verbal admissions, a foundation already weakened by the absence of any electronic recording. The forged defence exhibit had bolstered the Crown's position at trial; Scevola's evidence, had it been called, might have helped restore the applicant's credibility and raised a reasonable doubt.

Smart AJ agreed that the absence of Scevola's evidence created a reasonable possibility of miscarriage of justice, but expressed no opinion on the significance of Dib's evidence. His Honour also noted that the failure to record the alleged admissions at the roadside may require examination at the new trial.

Orders Made

  • Application to re-open the appeal granted
  • Appeal re-opened and allowed
  • Conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • Where orders from a prior appeal have not been formally perfected, the Court of Criminal Appeal retains jurisdiction to re-open that appeal on a fresh ground.
  • A miscarriage of justice may arise from the absence of available defence evidence even where that evidence was known to exist at the time of trial and its non-tender appeared to reflect a tactical decision by trial counsel.
  • Statements made by an accused shortly after an event can constitute admissible hearsay under s 66 of the Evidence Act 1995, as confirmed by reference to Crisologo (1997) 99 A Crim R 178.
  • A Crown case resting almost entirely on uncorroborated, unrecorded verbal admissions is particularly vulnerable to challenge where credible witness evidence capable of raising a doubt about those admissions was not placed before the jury.
  • The Court of Criminal Appeal expressed concern that the fresh ground had not been raised at the original appeal hearing, noting there were "unsatisfactory aspects" to a situation where the Court had been permitted to determine an appeal without all available grounds being put before it.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Evidence Act 1995 (NSW), s 66

Cases:
- R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 (the earlier appeal)
- Crisologo (1997) 99 A Crim R 178