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Court of Criminal Appeal 8 November 2013

Azzi v R

[2013] NSWCCA 249

Drugs
CRIMINAL LAW CONVICTION APPEAL SUPPLY OF PROHIBITED DRUG CREDIBILITY EVIDENCE COINCIDENCE EVIDENCE

Citation: Azzi v R [2013] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 8 November 2013
Judge(s): Beazley P, Hidden J, Fullerton J (Fullerton J delivered the principal judgment)

Background

The appellant was convicted after a jury trial in the District Court of supplying a prohibited drug, specifically 16.4 grams of heroin found in a wardrobe in his bedroom during a police search. The Crown relied on the deeming provisions in s 29 of the Drug Misuse and Trafficking Act 1985, which treats possession of a quantity above a prescribed threshold as deemed supply. The appellant was sentenced to 4 years and 6 months imprisonment with a non-parole period of 3 years. He did not appeal his sentence.

During the search, police also found 0.38 grams of methylamphetamine in a locked safe in the same wardrobe, opened with a key the appellant possessed. When asked about the white crystalline substance, the appellant said it was "probably sugar." He later pleaded guilty in the Local Court to possessing the methylamphetamine, making his earlier "sugar" claim false. This false statement became central to the appeal and was referred to throughout as "the sugar lie."

  • Whether the trial judge erred in permitting the jury to use the sugar lie as credibility evidence, contrary to s 108 of the Evidence Act 1995 (the first ground of appeal, filed in the original notice)
  • Whether the trial judge erred in admitting the sugar lie as coincidence evidence under s 98 of the Evidence Act 1995 (the second ground, raised in an amended notice after the Crown's written submissions reframed the first ground)
  • Whether leave should be granted under Rule 4 of the Criminal Appeal Rules to permit the appellant to argue the second ground of appeal, which had not been raised at trial

Decision

On the question of leave to argue the second ground, the Court granted leave to file the amended notice of appeal, despite the Crown's argument that defence counsel could not have been unaware at trial that the coincidence evidence extended beyond bare possession of other substances to include the sugar lie itself. The Court proceeded to consider both grounds on their merits.

On the second ground, the Court found that no objection had been taken at trial to the sugar lie being adduced as coincidence evidence, and no submission had been advanced that a statement (as opposed to an act or occurrence) was incapable of constituting an "event" for the purposes of s 98. The Court found it unnecessary to resolve that question definitively, because the appeal ultimately failed on other grounds.

On the first ground, the Court considered whether the sugar lie was properly admitted as credibility evidence and what provisions of the Evidence Act governed its use. Credibility evidence is defined in s 101A as evidence relevant to a witness's credibility only because it affects credibility assessment. The Crown argued, and the Court accepted, that the sugar lie had been admitted as coincidence evidence and was therefore not caught by the restrictions in ss 108A and 108B. Even accepting the credibility evidence framework, Fullerton J held that the sugar lie fell within the exception in s 108B(3)(c), which concerns evidence about whether an accused made a prior inconsistent statement. Because that exception applied, leave to adduce the evidence was not required and its admission was not in error.

Fullerton J was satisfied that the sugar lie was capable of substantially affecting the jury's assessment of the appellant's credibility generally, and specifically in relation to his denial of knowing possession of the heroin. Both the first and second grounds of appeal were rejected, and the conviction was upheld.

Orders Made

  • Leave granted to permit the appellant to file an amended notice of appeal
  • The appeal against conviction is dismissed

Key Takeaways

  • A false statement made by an accused to police during a search, later proved false by a guilty plea in separate proceedings, can properly be used by a jury to assess the credibility of the accused's denials on a related but distinct charge.
  • Under s 101A of the Evidence Act 1995, credibility evidence is defined narrowly as evidence relevant to credibility only because it affects its assessment. Where evidence has been admitted on another basis (such as coincidence evidence under s 98), the credibility provisions in ss 108A and 108B may not apply.
  • The exception in s 108B(3)(c) removes the need for leave where the evidence concerns whether an accused made a prior inconsistent statement. Fullerton J applied this provision to the sugar lie, treating the accused's denial of possessing heroin as the prior inconsistent statement.
  • In dismissing the appeal, the Court confirmed that leave under Rule 4 of the Criminal Appeal Rules may still be granted to raise a ground not argued at trial, even where the new ground was drawn expressly to respond to the Crown's written submissions on appeal.
  • No error was established in the trial judge's handling of the coincidence evidence notice under s 98, even though the sugar lie was not expressly identified in the notice as a standalone event.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Evidence Act 1995 (NSW), ss 98, 101, 101A, 108, 108A, 108B
- Criminal Appeal Rules, Rule 4

Cases
- Peacock v R [2008] NSWCCA 264; 190 A Crim R 454
- R v Chen [2002] NSWCCA 174; 130 A Crim R 300
- R v Rymer [2005] NSWCCA 310; 156 A Crim R 84
- R v Soma [2003] HCA 13; 212 CLR 299; 140 A Crim R 152