AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
14
Court of Criminal Appeal 16 December 2004

R v El-Azzi

[2004] NSWCCA 455

Drugs
APPEAL AGAINST CONVICTIONS ADMISSIBILITY OF COINCIDENCE EVIDENCE EVIDENCE OF DECEASED WITNESS READ INDEMNIFIED WITNESSES CROSS EVIDENCE OF PRIOR CRIMINAL CONVICTION

Citation: El-Azzi v R [2004] NSWCCA 455
Court: NSW Court of Criminal Appeal
Date: 16 December 2004
Judges: Santow JA; Simpson J; Sperling J

Background

The appellant, William El-Azzi, faced three counts in the Sydney District Court before Armitage DCJ. The charges were: knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine (Count 1), and two counts of conspiracy to manufacture a large commercial quantity of methylamphetamine at separate locations, Dooralong and Sylvania Waters (Counts 2 and 3). All charges arose from alleged events occurring between late 1995 and mid-1996.

The trial was lengthy, running from October to December 2002, and involved a complex web of co-participants including chemists, chemical suppliers, and property owners. The jury acquitted the appellant on Count 1 but convicted on Counts 2 and 3. On 19 May 2003, the appellant was sentenced to seven years' imprisonment on each count, with a non-parole period of five years and three months, the sentences to be served concurrently.

The appellant appealed against both conviction and sentence. The appeal raised a wide range of grounds, touching on evidentiary rulings, jury directions, the use of accomplice evidence, and the characterisation of the conspiracy's object.

The appeal raised the following key legal questions:

  • Whether the object of the conspiracy was properly characterised as the manufacture of methylamphetamine, as distinct from amphetamine
  • Whether the alleged conspiracy could ground a conviction given arguments about the impossibility of achieving its object using the available materials
  • Whether a permanent stay of proceedings should have been granted on the basis of that impossibility
  • Whether Count 1 should have been tried separately from the conspiracy counts
  • Whether coincidence evidence was properly admitted and whether appropriate jury directions were given about evidence admissible only on individual counts
  • Whether doubts about a witness's credibility on one count should have been directed to affect the jury's assessment on other counts
  • Whether the trial judge's directions on circumstantial evidence were adequate
  • Whether evidence of a deceased witness was properly read to the jury
  • Whether the cross-examination of the appellant on matters of credibility, including a prior criminal conviction and disciplinary proceedings, was properly permitted
  • Whether one accomplice witness can legally corroborate the evidence of another
  • Whether the verdicts were unreasonable
  • Whether the trial judge adequately directed the jury on the unreliability of witnesses
  • Whether the jury should have been given access to transcripts of counsel's addresses and the summing up
  • Whether the sentence was manifestly excessive

Decision

The Court of Criminal Appeal dismissed all grounds of appeal against conviction. On the conspiracy counts, the court rejected the argument that the conspiracy's object was legally impossible to achieve. The court also upheld the trial judge's characterisation of the conspiracy as one directed at manufacturing methylamphetamine, finding no error in the failure to direct the jury to distinguish between methylamphetamine and amphetamine as the intended product.

Several grounds concerned evidentiary rulings under the Evidence Act 1995 (NSW). The court found that coincidence evidence had been properly admitted under s 98, that cross-examination of the appellant on credibility matters, including a prior conviction and disciplinary proceedings, was within the trial judge's discretion under ss 103 and 104, and that the applicable test of "substantial probative value" had been correctly applied. The court found no unfairness sufficient to warrant exclusion under ss 135 or 137.

On accomplice corroboration, the court confirmed that one accomplice can, in appropriate circumstances, corroborate the evidence of another, provided the jury is properly directed as to the caution required when relying on the evidence of witnesses who may have self-interested reasons to testify. The court found the trial judge's directions on accomplice unreliability were adequate.

Regarding the jury's request for transcripts of counsel's addresses, the court held that no miscarriage of justice resulted from the refusal to provide those transcripts. The jury had been given a summary of the addresses in the summing up, and had they needed any specific passage read, they could have asked. The court applied the proviso, finding no substantial miscarriage. Leave to appeal against sentence was granted but the sentence appeal was also dismissed, no error in the exercise of the sentencing discretion having been established.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A conspiracy charge is not defeated merely because the means proposed to achieve the object of the conspiracy may have been inadequate or impossible in the circumstances; the court confirmed that impossibility arguments of this kind do not automatically ground a permanent stay of proceedings.
  • Where a jury tries multiple counts arising from related alleged conduct, the trial judge has a discretion to permit coincidence evidence and to direct the jury appropriately on its use; no error was found in the exercise of that discretion here.
  • One accomplice can corroborate the evidence of another, provided the jury receives adequate directions about the potential unreliability of accomplice witnesses and the caution required before acting on such evidence.
  • Cross-examination of an accused on matters relevant only to credibility, including prior convictions and disciplinary findings, may be permitted where the evidence meets the "substantial probative value" threshold under the Evidence Act 1995 (NSW), and the court found no error in the trial judge's application of that test.
  • In dismissing the transcript ground, the Court of Criminal Appeal confirmed that a failure to provide the jury with a transcript of counsel's addresses does not constitute a miscarriage of justice where the trial judge has summarised those addresses and the jury had an opportunity to request further assistance.

Legislation and Cases Referenced

Legislation:

  • Crimes Act 1900 (NSW), s 186
  • Criminal Appeal Act 1912 (NSW), ss 5F, 6
  • Criminal Procedure Act 1986 (NSW), ss 29, 64
  • Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 26
  • Evidence Act 1995 (NSW), ss 65, 98, 101, 102, 103, 104, 112, 128, 135, 136, 137, 164, 165, 192
  • Evidence Act 1977 (Qld), s 15(2)

Cases:

  • Director of Public Prosecutions v Nock [1978] AC 979
  • Hoch v The Queen [1988] HCA 50; 165 CLR 292
  • House v The King [1936] HCA 40; 55 CLR 499
  • M v The Queen [1994] HCA 63; 181 CLR 487
  • Matusevich v The Queen [1977] HCA 30; 137 CLR 633
  • Pollitt v The Queen [1992] HCA 35; 174 CLR 558
  • RPS v The Queen [2000] HCA 3; 199 CLR 620
  • Shepherd v The Queen [1990] HCA 56; 170 CLR 573
  • Stanoevski v The Queen [2001] HCA 4; 202 CLR 115
  • R v Barbouttis (1995) 37 NSWLR 256
  • R v Bartle [2003] NSWCCA 329; 181 FLR 1
  • R v Chan [2002] NSWCCA 217; 131 A Crim R 66
  • R v Chen & Ors [2002] NSWCCA 174; 130 A Crim R 300
  • R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
  • R v El Azzi (2001) 125 A Crim R 113
  • R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
  • R v Shivpuri [1987] AC 1
  • R v Stewart [2001] NSWCCA 260; 52 NSWLR 301
  • Kevin William Phillips v The Queen [1985] HCA 79; 159 CLR 45