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Court of Criminal Appeal 29 April 2016

Mirzazadeh v R

[2016] NSWCCA 65

Drugs
CRIMINAL LAW CONVICTION APPEAL ISSUE OF DURESS TAKEN FROM JURY ERROR ESTABLISHED TRIAL ORDERED.

Citation: Mirzazadeh v R [2016] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 29 April 2016
Judge(s): Hoeben CJ at CL, Harrison J, Schmidt J

Background

The appellant, an Iranian-born German national studying medicine in London, travelled to Australia in early 2013 on a temporary visa. He was arrested at a Clovelly apartment after collecting two boxes from a Newcastle car park containing what he believed to be methamphetamine, later confirmed by the AFP to be 8.75 kilograms of pure methamphetamine with a street value of approximately $8 million. The appellant was charged with attempting to possess a border controlled drug in a commercial quantity under s 307.5 and s 11.1 of the Criminal Code Act 1995 (Cth).

The appellant did not challenge the Crown's account of events. His sole defence was duress: he claimed he had acted under threats to his family in Iran. He gave evidence at trial, as did other witnesses, in support of that defence.

At the close of the defence case, the trial judge ruled that duress would not be left to the jury. Faced with no remaining defence, the appellant changed his plea to guilty. He subsequently sought leave to appeal against both his conviction and his sentence of 8 years and 4 months imprisonment with a non-parole period of 4 years and 2 months.

  • Whether the trial judge applied the correct legal test when deciding not to leave the defence of duress to the jury under ss 10.2 and 13.3 of the Criminal Code Act 1995 (Cth)
  • Whether the appellant had satisfied the evidentiary onus required to have duress left for the jury's determination
  • Whether, if error was established, a substantial miscarriage of justice had occurred and the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) should nonetheless be applied
  • Whether the sentence appeal required separate determination

Decision

The Court of Criminal Appeal found that the trial judge applied the incorrect legal test in deciding whether to leave duress to the jury. The interaction between s 10.2 (which sets out the defence of duress) and s 13.3 (which governs the evidentiary burden on a defendant raising a defence under the Criminal Code) required the trial judge to assess whether sufficient evidence existed to support the defence, not to pre-determine its ultimate persuasiveness. The Court concluded the appellant had satisfied that evidentiary onus and the question of duress should have been placed before the jury.

Once the error was established, the Court turned to whether the proviso should be applied, that is, whether the outcome would inevitably have been the same had the correct test been used. The Court applied the principles from Weiss v The Queen, which require an appellate court to make an independent assessment of the evidence while accounting for the "natural limitations" inherent in proceeding from a written record. Because duress was the sole issue at trial, the Court found those natural limitations were particularly acute: the jury, unlike the appellate court, had the advantage of seeing and hearing the appellant and his witnesses give evidence on the very question at the heart of the case.

The Court held that the question of duress was a quintessential jury question, requiring an assessment of the credibility and reliability of witnesses. The Court declined to apply the proviso, finding that a substantial miscarriage of justice had occurred. The appellant had not received a trial according to law. In those circumstances, a retrial was ordered.

Given the outcome on conviction, the Court declined to consider the sentence appeal.

Orders Made

  • The appeal against conviction is allowed
  • The conviction for attempting to possess a commercial quantity of a border controlled drug is quashed
  • A retrial on that count is ordered
  • The sentence appeal was not determined

Key Takeaways

  • Under ss 10.2 and 13.3 of the Criminal Code Act 1995 (Cth), a defendant who raises duress need only satisfy an evidentiary onus sufficient to put the issue in play; the trial judge's role at that stage is not to resolve the ultimate persuasiveness of the evidence but to assess whether it is capable of supporting the defence.
  • Where a trial judge incorrectly removes the sole defence from the jury's consideration, a substantial miscarriage of justice arises and the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) will not ordinarily be applied.
  • The Court of Criminal Appeal confirmed that the credibility of witnesses on a quintessential jury question, such as duress, falls within the "natural limitations" that appellate courts must acknowledge when deciding whether to apply the proviso from a written record.
  • A defendant who pleads guilty after an adverse ruling withdrawing a defence does not necessarily forfeit the right to challenge that ruling on appeal; the conviction here was quashed notwithstanding the guilty plea.
  • Sufficient evidence of duress existed in this case, including the appellant's own testimony, the evidence of other witnesses, and surrounding circumstances, to require the issue to be left for jury determination.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth): ss 10.2, 11.1, 13.3, 307.5
- Criminal Appeal Act 1912 (NSW): s 6(1)

Cases
- Weiss v The Queen [2005] HCA 81; 224 CLR 300
- Taiapa v The Queen [2009] HCA 53; 240 CLR 95
- Lindsay v R [2015] HCA 16; 319 ALR 207
- The Queen v Khazaal [2012] HCA 26; 246 CLR 610
- Oblach v The Queen [2005] NSWCCA 440; 65 NSWLR 75
- Giourtalis v R [2013] NSWCCA 216
- R v Chiron [1980] 1 NSWLR 218
- R v Tan Phuong Le (No 3) [2010] NSWDC 37