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Court of Criminal Appeal 23 March 2022

Abouhaidar v R

[2022] NSWCCA 57

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER CONVICTION UNREASONABLE APPLICANT CROSS EXAMINED BEFORE JURY OPEN TO JURY TO CONVICT

Citation: Abouhaidar v R [2022] NSWCCA 57
Court: Court of Criminal Appeal, New South Wales
Date: 23 March 2022
Judges: Leeming JA at [1]; Rothman J at [86]; Harrison J at [87]

Background

The applicant was convicted in the District Court of attempting to possess a commercial quantity of MDMA, a border-controlled drug, contrary to ss 11.1 and 307.5(1) of the Criminal Code (Cth). He was tried jointly with a co-accused over four packages sent by air from the Netherlands to Sydney in October 2015, addressed to an aircraft services company at Bankstown. The third and fourth packages were intercepted by Customs officers at Sydney Airport, where more than 14 kilograms of MDMA were found inside them.

The applicant gave evidence at trial. He admitted arranging for the co-accused to assist with importing the packages, but maintained he believed they contained polymer for manufacturing counterfeit banknotes, not drugs. In support of this account, he pointed to a prior counterfeiting conviction from 2014, a claimed earlier shipment of polymer by the same route, and the fact that 204 counterfeit $50 notes were found in his vehicle when he was arrested. He was also convicted on a separate charge of possessing those counterfeit notes, to which he pleaded guilty.

The applicant sought leave to appeal his conviction on the principal drug charge some four years after the jury's verdict. He had previously received advice from four barristers, including a senior counsel, that his appeal had no merit. A fifth counsel later formed the contrary view, which prompted the application.

  • Whether the conviction was unreasonable or could not be supported having regard to the evidence, within the meaning established by M v The Queen (1994) 181 CLR 487
  • Whether the alternative hypothesis advanced by the applicant, that he believed the packages contained polymer for counterfeiting, could be excluded beyond reasonable doubt
  • Whether an extension of time to file the notice of appeal should be granted, given the extraordinary delay of approximately four years

Decision

The Court of Criminal Appeal unanimously refused the application. Leeming JA, with whom Rothman J and Harrison J agreed, reviewed the entirety of the trial record and concluded that it was amply open to the jury to be satisfied beyond reasonable doubt that the applicant knew the packages contained illicit drugs.

The circumstantial case against the applicant was characterised as very powerful. The use of coded communications, the consignments being addressed to an unrelated company, the steps taken to monitor the packages within DHL's tracking system, and the concerted effort to obtain documentation confirming Customs seizure all pointed to knowledge that the importation was unlawful. When cross-examined before the jury, the applicant accepted that aspects of his case were untrue, a concession the jury was entitled to weigh heavily.

Leeming JA applied the established principle from M v The Queen that an appellate court must not disregard the jury's primary role in assessing guilt, nor the advantage the jury holds from having seen and heard witnesses. The mere possibility of an innocent explanation is not sufficient where the inference of guilt is the only inference reasonably open on the evidence.

Because the appeal lacked merit, no occasion arose to grant leave or extend time. Rothman J added that, on his own analysis of the evidence, he would have reached the same verdict as the jury. Harrison J agreed that the jury's conclusion, that the applicant knew the packages contained illicit drugs, was entirely uncontroversial on the evidence.

Orders Made

  • The application for an extension of time within which to apply for leave to appeal against conviction was refused.

Key Takeaways

  • A conviction is not unreasonable simply because the accused advanced an alternative hypothesis at trial. Where the inference of guilt is the only inference reasonably open on the evidence, the mere possibility of innocence does not suffice to disturb the verdict.
  • Under the M v The Queen test, an appellate court reviewing a jury verdict must give full regard to the jury's primary responsibility for determining guilt and the jury's advantage in having seen and heard the witnesses.
  • Circumstantial evidence combining surveillance, intercepted communications, use of coded language, and evasive logistical arrangements can collectively support a finding of knowledge beyond reasonable doubt.
  • In dismissing the application, the Court of Criminal Appeal confirmed that prior legal advice from multiple barristers that an appeal lacks merit is irrelevant to the Court's own determination of that appeal, though it bears on the discretion to extend time.
  • Extraordinary delay in filing a notice of appeal does not necessarily preclude the court from considering the merits, but where the appeal lacks merit, no extension of time will be granted.

Legislation and Cases Referenced

Legislation:
- Crimes (Currency) Act 1981 (Cth), s 9
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Code (Cth), ss 11.1, 300.6, 307.5
- Criminal Procedure Act 1986 (NSW), s 29
- Judiciary Act 1903 (Cth), s 68

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
- Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22
- Lin v R [2019] NSWCCA 171
- Nader v R [2018] NSWCCA 256