AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 20 March 2002

REGINA v KARIMI

[2002] NSWCCA 72

Drugs
APPEAL AGAINST CONVICTION INCONSISENT EVIDENCE NO CASE FOR AN OUTRIGHT ACQUITTAL.

Citation: Regina v Karimi [2002] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 20 March 2002
Judges: Mason P, Hulme J, Hidden J

Background

The appellant was convicted in the District Court in July 1999 of importing not less than the trafficable quantity of heroin (118.4 grams) in contravention of the Customs Act 1901. He had arrived at Sydney Airport from Bangkok carrying tracksuit pants that tested positive for heroin, and a note referencing a chemical used to extract heroin from fabric was later found in his wallet. He was sentenced to six years imprisonment with a four-year non-parole period.

The appellant, who ultimately appeared in person before the Court of Criminal Appeal after discharging his legally aided counsel on the morning of the hearing, sought not only to overturn his conviction but to press for an outright acquittal rather than a retrial. The Crown, for its part, had already conceded before the hearing that the conviction could not stand.

  • Whether the trial judge erred in his directions to the jury regarding the appellant's failure to give evidence at trial (the so-called "Weissensteiner direction")
  • Whether the trial judge erred in admitting evidence of admissions allegedly made in breach of s 23V(1) of the Commonwealth Crimes Act
  • Whether the verdict was unsafe and unsatisfactory such that an outright acquittal was warranted
  • Whether the absence of a videotape of the interview, and related evidentiary inconsistencies, undermined the Crown case to a decisive degree
  • Whether trial counsel's failure to call positive character evidence constituted a ground for relief

Decision

The central and determinative ground of appeal concerned the trial judge's direction to the jury about the appellant's decision not to give evidence. That direction had followed the then-accepted approach from Weissensteiner v The Queen (1993) 178 CLR 217. However, the subsequent High Court decision in Azzopardi v The Queen (2001) 75 ALJR 931 overturned the general understanding of that earlier law, rendering the direction given at trial erroneous. The Crown conceded this ground was made out, accepted that the proviso (which allows an appellate court to dismiss an appeal despite an error if no substantial miscarriage of justice occurred) did not apply, and agreed a new trial should be ordered.

The appellant sought to go further and argued for an acquittal, reviving his original grounds of appeal. He pointed to alleged police conspiracies, discrepancies in officer evidence, the unexplained presence of the incriminating note in his wallet, and the equivocal evidence about whether a videotape of his interview had ever been created. Mason P considered all of these contentions and concluded they were ultimately matters for a jury to weigh. The Court was not persuaded that the Crown evidence was so deficient that no jury acting reasonably could have convicted.

The remaining original grounds, concerning the admission of evidence of admissions and the conduct of trial counsel, also did not establish a basis for an outright acquittal. The Court noted that the appellant retained the option of applying for a "no bill" and could place any additional evidence before the Crown Prosecutor through that process.

Orders Made

  • Conviction set aside
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's direction permitting adverse inferences from an accused's silence at trial, given in accordance with Weissensteiner v The Queen, constituted an error of law following the High Court's decision in Azzopardi v The Queen, which overturned that earlier approach.
  • Where the Crown concedes both that a misdirection occurred and that the proviso is inapplicable, the appropriate remedy is ordinarily a new trial rather than an outright acquittal.
  • An outright acquittal on appeal requires more than factual inconsistencies, alleged conspiracies, or gaps in the Crown evidence; the question is whether it was open to a jury, on the whole of the evidence, to be satisfied of guilt beyond reasonable doubt.
  • Equivocal evidence about whether an interview was video-recorded, without more, does not establish that a conviction is unsafe or unsatisfactory, particularly where any inference about what a recording might have shown remains speculative.
  • A convicted person whose appeal raises grounds falling short of establishing an entitlement to acquittal may still seek a "no bill" from the Crown Prosecutor by placing additional evidence before them outside the appeal process.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B
- Commonwealth Crimes Act, s 23V(1)

Cases:
- Weissensteiner v The Queen (1993) 178 CLR 217
- Azzopardi v The Queen (2001) 179 ALR 349; (2001) 75 ALJR 931