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Court of Criminal Appeal 29 February 2008

BOUJAOUDE, Elia Elrob v R

[2008] NSWCCA 35

Also reported as (2008) 72 NSWLR 85 181 A Crim R 281
Drugs
INDICTMENT CHARGE OF SUPPLYING A PROHIBITED DRUG 279 GRAMS OF HEROIN VERDICT OF GUILTY CHARGED KNOWN OFFENCE 279 GRAMS WAS A PARTICULAR

Citation: BOUJAOUDE, Elia Elrob v R [2008] NSWCCA 35
Court: Court of Criminal Appeal, New South Wales
Date: 29 February 2008
Judges: Giles JA; Hislop J; Price J

Background

The appellant was arrested in May 1987 and charged with supplying 279 grams of heroin. At that time, the commercial quantity of heroin under the Drug Misuse and Trafficking Act 1985 was 1 kilogram, meaning 279 grams fell below the commercial quantity threshold. The appropriate charge was therefore the basic supply offence under s 25(1) of that Act.

The appellant failed to appear on bail, spent years overseas, and was not arrested until February 2005. By that point, a 1988 amendment to the Act had reduced the commercial quantity of heroin from 1 kilogram to 250 grams. That amendment meant 279 grams now exceeded the commercial quantity.

When the matter came to trial in 2007, the Crown presented an indictment charging the appellant with supplying not less than the commercial quantity of a prohibited drug, specifying "279 grams of heroin." The jury returned a verdict of guilty. Before sentencing, the appellant challenged whether the indictment was valid at all.

  • Whether the indictment disclosed a known offence, given that 279 grams of heroin did not meet the commercial quantity threshold at the time of the alleged supply in 1987
  • Whether the quantity specified in the indictment ("279 grams") operated as a defining element of the charge or merely as a particular
  • Whether the conviction could stand in any form, or whether an alternative conviction for the basic supply offence under s 25(1) should be substituted

Decision

The Court found that the indictment was defective. The charge alleged supply of not less than the commercial quantity by reference to a quantity that, at the time of the alleged offence, was actually less than the commercial quantity. Presenting the indictment in that form created an internal inconsistency: the specified quantity (279 grams) was legally incapable of satisfying the element that made the offence a s 25(2) charge as at May 1987.

However, the Court held that the indictment was not entirely invalid. The facts stated in the indictment did disclose an offence known to law, namely the basic supply offence under s 25(1). The specified quantity of 279 grams was a particular rather than a constituent element, and its inclusion did not render the charge a nullity. The indictment remained sufficient to ground a conviction for the lesser offence.

Under s 25(3) of the Drug Act, a jury may acquit on the commercial quantity charge and find the accused guilty of the basic supply offence. The Court applied this provision to substitute a conviction for the s 25(1) offence. Because the appellant had not yet been sentenced, the Court declined to pass sentence itself and instead remitted the matter to the District Court for a sentencing hearing.

Orders Made

  • Time for filing the notice of appeal extended to 15 June 2007
  • Appeal allowed and original conviction quashed
  • Conviction for the offence of supplying a prohibited drug (s 25(1)) substituted
  • Proceedings remitted to the District Court for sentencing

Key Takeaways

  • A charge framed by reference to a quantity that did not satisfy the relevant statutory threshold at the time of the alleged offence is defective, even if subsequent legislative amendments would have made that quantity sufficient.
  • Specifying a quantity in an indictment operates as a particular, not as a separate legal element; its inclusion does not automatically render the indictment void or the offence charged one unknown to law.
  • Where the facts stated in the indictment disclose a known lesser offence, the Court of Criminal Appeal may substitute a conviction for that lesser offence rather than simply quashing the conviction.
  • The alternative verdict provision in s 25(3) of the Drug Misuse and Trafficking Act 1985 was available on the indictment as presented, enabling the substituted conviction without requiring a retrial.
  • Appellate courts will extend time to appeal where circumstances clearly warrant it, even without a formal application, provided the Crown raises no substantive objection.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25(3)
- Drug Misuse and Trafficking (Amendment) Act 1988 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5, 5A, 7(2), 11
- Criminal Procedure Act 1986 (NSW), s 20
- Criminal Procedure Regulation 2000 (NSW), reg 9(5)
- Criminal Procedure Regulation 2005 (NSW), reg 7
- District Court Rules 1973 (NSW), r 10D

Cases
- Griffiths v The Queen (1977) 137 CLR 293
- R v MAJW [2007] NSWCCA 145
- DPP v Bhagwan [1972] AC 60 (HL)
- R v Aldridge (1993) 67 A Crim R 371
- R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 13
- R v Ayres [1984] 1 AC 447
- Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303
- Chanthaboury v R [2007] NSWCCA 229
- S v The Queen (1989) 168 CLR 266
- Johnson v Miller (1937) 59 CLR 467
- Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364