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Court of Criminal Appeal 20 April 2017

Alhassan v R

[2017] NSWCCA 73

Drugs
CRIMINAL LAW CONVICTION APPEAL WHETHER VERDICTS INCONSISTENT

Citation: Alhassan v R [2017] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 20 April 2017
Judges: Leeming JA (with RA Hulme J and Beech-Jones J agreeing)

Background

The appellant was convicted in the District Court of supplying a large commercial quantity of methylamphetamine (1980.7 grams) and acquitted of a separate count of supplying 184.2 grams of cocaine. Both drugs were found in a Jeep Cherokee owned and driven by the appellant. The trial proceeded before a judge and jury.

The prosecution case rested substantially on surveillance footage captured in Bankstown on 3 April 2012. That footage showed a sequence of events culminating in a co-accused retrieving a white shopping bag from the appellant's Jeep in a hotel carpark and handing it to an undercover police operative. The appellant fled the scene at speed when police moved in to make arrests.

At trial, the appellant denied any involvement. He said he was giving a friend a lift and had no knowledge that drugs had been placed in his vehicle. After conviction, he sought leave to appeal on the ground that the guilty verdict was unreasonable.

  • Whether the guilty verdict on the methylamphetamine count was inconsistent with the acquittal on the cocaine count, requiring an acquittal on both
  • Whether the conviction was unreasonable because the Crown had not proved beyond reasonable doubt that the appellant knew or believed the transaction involved a large commercial quantity of a prohibited drug, as distinct from a lesser quantity

Decision

Inconsistency of verdicts: The Court rejected the argument that the two verdicts were logically inconsistent. Surveillance evidence closely tracked the acquisition, movement, and delivery of the methylamphetamine, but there was no equivalent evidence connecting the appellant to the cocaine found in the rear pocket of the passenger seat. No fingerprint or DNA testing of the cocaine packaging was in evidence. The jury's acquittal on the cocaine count was explicable on a rational basis: the evidence as to that drug was simply thinner. The verdicts could be reconciled and did not demonstrate an irrational approach by the jury.

Unreasonableness of the conviction (knowledge of quantity): The Court accepted this ground. To convict of supplying a large commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW), the Crown must prove the accused knew or believed the transaction involved that quantity. The surveillance evidence established the appellant's involvement in a drug supply but did not, by itself, prove he knew the amount involved reached the large commercial threshold. The bag was opaque and the appellant never physically handled it. No evidence showed he had been told the quantity or had otherwise formed a relevant belief about it.

The Court noted that the jury's rejection of the appellant's denial of any involvement did not fill this gap. Disbelieving the appellant's account did not establish the positive Crown case on the knowledge element, and the case was not one where the appellant's own testimony had narrowed the available hypotheses so as to exclude an innocent explanation for that specific element.

As a consequence, the Court substituted a verdict of guilty of the lesser offence of supply under section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), which does not carry the enhanced quantity threshold. Resentencing was remitted to the District Court.

Orders Made

  • Time to apply for leave to appeal extended to 14 November 2016
  • Leave to appeal granted
  • Appeal allowed
  • Guilty verdict on count 1 and the sentence imposed on 31 March 2016 set aside
  • Verdict of guilty of an offence under section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) substituted
  • Proceedings remitted to the District Court at Parramatta for resentencing
  • Proceedings listed for mention in the District Court on 27 April 2017

Key Takeaways

  • A conviction for supplying a large commercial quantity of a prohibited drug requires the Crown to prove beyond reasonable doubt that the accused knew or believed the supply involved that quantity, not merely that a supply of some prohibited drug occurred.
  • Where a defendant's testimony is disbelieved, that disbelief does not automatically establish every element of the charged offence. The Crown must independently prove each element, including knowledge of quantity.
  • Inconsistent verdicts will not automatically result in an acquittal across all counts. Where a rational basis exists to explain the different outcomes, the Court of Criminal Appeal will generally accept that the jury performed its function properly.
  • Under section 7(2) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal may substitute a conviction for a lesser offence where the evidence supports that lesser finding, rather than entering a verdict of acquittal.
  • A brief extension of time to seek leave to appeal may be granted where the delay is explained by genuine difficulty in obtaining transcripts, provided the proposed grounds are not without substance.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 7
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 32, 33, 44

Cases:
- MacKenzie v The Queen (1996) 190 CLR 348
- R v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
- Allan v R [2017] NSWCCA 6
- Nguyen v R [2015] NSWCCA 78
- Yousef Jidah v R [2014] NSWCCA 270