AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
15
Court of Criminal Appeal 20 February 2015

El-Haddad v R

[2015] NSWCCA 10

Also reported as (2015) 88 NSWLR 93
Drugs
CRIMINAL LAW INDICTMENT CONTAINING FIVE CHARGES RELEVANCE OF DISSIMILARITIES

Citation: El-Haddad v R [2015] NSWCCA 10
Court: Court of Criminal Appeal, New South Wales
Date: 20 February 2015
Judge(s): Leeming JA (leading judgment); McCallum J and R A Hulme J (agreeing)

Background

The appellant was convicted following a 16-day jury trial on five drug importation charges under the Criminal Code 1995 (Cth). Four counts involved marketable quantities of heroin, cocaine and ephedrine. The fifth and most serious count (Count 4) alleged the importation of a commercial quantity of heroin, totalling approximately 16.86 kilograms, and resulted in a 15-year term of imprisonment.

The heroin the subject of Count 4 had arrived in a shipping container and was held by freight forwarders in Sydney. The Crown alleged the appellant was the person who had made telephone and email contact with the freight forwarder, making inquiries about storage and transportation costs and asserting ownership of the container.

On appeal, the appellant challenged the admission of tendency and coincidence evidence, the trial judge's refusal to direct a verdict of acquittal on Count 4, and the overall safety of the jury's verdict on that count.

  • Whether evidence relevant to Counts 1, 2, 3 and 5 was properly admitted as tendency or coincidence evidence with respect to Count 4, and vice versa, under ss 97, 98 and 101 of the Evidence Act 1995 (NSW).
  • Whether the trial judge correctly construed the expanded statutory definition of "import" in the Criminal Code 1995 (Cth), and whether the appellant's conduct was legally sufficient to constitute "dealing with the substance in connection with its importation."
  • Whether the jury's verdict on Count 4 was unsafe and unsatisfactory and not supported by the evidence.

Decision

Tendency and coincidence evidence. Leeming JA provided a detailed analysis of ss 94, 95, 97, 98 and 101 of the Evidence Act 1995 (NSW). His Honour confirmed that ss 97 and 98 do not operate to exclude evidence outright, but rather restrict the purposes for which evidence may be used to prove "a particular matter." Section 95, read with ss 97 and 98, controls the use of evidence even where that evidence is relevant and admitted for another purpose. In a jury trial, this ordinarily requires appropriate judicial directions. The Court found the primary judge was correct in concluding that the second, more precisely framed notice satisfied the statutory requirements, and that the evidence in question carried significant probative value.

On the question of probative value, the Court confirmed that the specificity with which a tendency is framed directly affects the strength of the inferential reasoning it supports. Relevant dissimilarities in the evidence may reduce that probative value, but the existence of some dissimilarities does not necessarily defeat admissibility. The Court found no error in the trial judge's rulings on tendency and coincidence evidence.

The meaning of "import". The Court of Criminal Appeal held that the words "import" and "importation" in the Code are not co-extensive. The expanded definition, introduced in 2010, deems "import" to include "deal with the substance in connection with its importation." That dealing must be something beyond the physical act of bringing the substance into Australia, and "importation" in this context refers to a broader ongoing process. The Court accepted that a bare price inquiry would not, of itself, constitute a "dealing" with goods. However, the communications here went further: they included assertions of ownership of the container and were directly connected with paying fees for storage of the goods while held by the freight forwarder after arrival. The Court found these communications amounted to dealings with the goods within the expanded definition, and that the trial judge was correct to refuse the directed verdict application, albeit for different reasons.

Safety of the jury verdict. The Court refused leave to appeal on Ground 4. Leeming JA noted that limited submissions and materials had been placed before the Court on this ground. Having considered the evidence, the Court was not persuaded that the jury must have entertained a doubt. It was open to the jury on the evidence to be satisfied beyond reasonable doubt that the appellant had made the relevant communications and that those communications constituted legally sufficient dealings with the heroin.

Orders Made

  • Leave to appeal refused in respect of Ground 4.
  • The appeal dismissed.

Key Takeaways

  • Sections 97 and 98 of the Evidence Act 1995 (NSW) do not exclude evidence altogether; rather, they restrict the use of evidence to prove a particular matter, operating in conjunction with s 95, which governs permissible uses of admitted evidence even where that evidence is relevant for another purpose.
  • The probative value of tendency evidence depends on the degree of specificity with which the tendency is framed: the more precisely the tendency is identified, the stronger the inferential support it may provide.
  • Relevant dissimilarities in evidence can dilute probative value, but their presence does not automatically preclude admissibility as tendency or coincidence evidence.
  • Under the Criminal Code 1995 (Cth), "importation" in the expanded definition of "import" refers to a broad process rather than a discrete physical act; a bare price inquiry does not constitute a "dealing," but communications asserting ownership and addressing costs directly tied to storing imported goods after arrival can be sufficient.
  • Where an appellant relies on a ground that the verdict was unsafe and unsatisfactory but provides only limited submissions and materials to the Court, the Court of Criminal Appeal may refuse leave to appeal on that ground where the evidence discloses a sufficient basis for the jury's findings.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 11.1, 300.2, 307, 307.1, 307.2, 307.12, 314
- Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth)
- Evidence Act 1995 (NSW), ss 94, 95, 97, 98, 100, 101
- Evidence Amendment Act 2007 (NSW)
- Customs Act 1901 (Cth), s 233B
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] HCA 21; 87 ALJR 668
- DSJ v The Queen [2012] NSWCCA 9; 84 NSWLR 758
- KJR v R [2007] NSWCCA 165; 173 A Crim R 226
- Sokolowskyj v R [2014] NSWCCA 55
- Golossian v R [2013] NSWCCA 311
- Clark v R [2014] NSWCCA 236
- R v Tranter [2013] SASCFC 61; 116 SASR 452
- Leff v R (1996) 86 A Crim R 212
- R v Nolan [2012] NSWCCA 126; 83 NSWLR 534
- BCM v The Queen [2013] HCA 48; 88 ALJR 101
- House v The King (1936) 55 CLR 499
- B v The Queen [1992] HCA 68; 175 CLR 599
- Libke v The Queen [2007] HCA 30; 230 CLR 559