AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 20 December 2004

R v El-Kheir [2004] NSWCCA 461 revised - 10

[2004] NSWCCA 461

Drugs
CRIMINAL LAW EVIDENCE CHARACTER BAD CHARACTER GOOD CHARACTER WHETHER ADDUCED BY DEFENCE

Citation: R v El-Kheir [2004] NSWCCA 461 revised - 10/01/2005
Court: NSW Court of Criminal Appeal
Date: 20 December 2004
Judges: Tobias JA, Hoeben J, Smart AJ

Background

The appellant was convicted in the District Court of attempting to obtain possession of prohibited imports, namely heroin concealed inside replica engine flywheels delivered to a residential address in Greenacre as part of a police controlled delivery. Federal agents observed the appellant at the premises with grease and red/brown paint residue on his hands and clothing, consistent with handling the replica flywheels. A listening device recorded conversations between the appellant and his cousin that implicated them both in opening the flywheels.

The Crown's case rested substantially on physical evidence, voice identification, and the appellant's presence at the scene. The appellant gave evidence on oath denying involvement and supported his account with evidence of his good character. The Crown sought to undermine that good character evidence by raising what was described as a "pension card issue," which was used to suggest the appellant was not a person of good character.

The trial concluded with a guilty verdict. The appellant was sentenced to 7 years and 8 months imprisonment with a non-parole period of 4 years and 8 months. He appealed against his conviction only.

  • Whether the trial judge erred in admitting bad character evidence without requiring leave under the Evidence Act 1995
  • Whether the trial judge's directions to the jury on good character evidence were adequate, particularly the absence of a "propensity direction" explaining the limited use of any bad character finding
  • Whether the voice identification evidence was of sufficient quality to be admitted, and whether the jury was adequately warned about its reliability
  • Whether the verdict was unreasonable or unsupportable having regard to the evidence

Decision

The Court of Criminal Appeal upheld the appeal on the ground relating to jury directions on character evidence. The trial judge had directed the jury that evidence of good character could be considered in relation to guilt, but gave no direction on what the jury could or could not do if it concluded the appellant was not of good character. This omission was critical, because the Crown had raised the pension card issue specifically to negate the good character evidence and attack the appellant's credit.

Tobias JA found there was a significant risk the jury, having decided the appellant was not of good character, would treat that conclusion as permitting them to reason toward his guilt by propensity, without any direction to the contrary. The trial judge's failure to give a proper "bad character" direction meant the appellant lost a fair chance of acquittal. The proviso under s 6(1) of the Criminal Appeal Act 1912 (which allows a conviction to stand despite an error if no substantial miscarriage of justice has occurred) did not apply in these circumstances.

On the other grounds, the Court rejected the appellant's challenges. It held that the failure to obtain leave before adducing the bad character evidence was an error by the trial judge, but that error alone did not cause a miscarriage of justice. The voice identification evidence, while described as unreliable, had been admitted with an appropriate identification warning to the jury. The verdict was also found to be reasonable and supportable on the evidence as a whole.

Orders Made

  • Appeal against conviction allowed
  • Conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • Where a defendant adduces good character evidence and the Crown responds with material suggesting bad character, the trial judge must direct the jury on both the permissible and impermissible uses of that material. A direction limited to the relevance of good character to guilt is insufficient if it leaves open the possibility that a finding of bad character will be used as propensity reasoning.

  • The Court of Criminal Appeal confirmed that the failure to give an adequate bad character direction can amount to a substantial miscarriage of justice, particularly where the defence case depended heavily on the accused's credibility and good character evidence.

  • Under the Evidence Act 1995, leave is required before bad character evidence is adduced. A trial judge's failure to require leave is an error, but the Court of Criminal Appeal held this error alone did not cause a miscarriage of justice on the facts here.

  • Voice identification evidence that is assessed as unreliable may still be admitted where an appropriate warning is given to the jury under the Evidence Act 1995, though the court retains a discretion to refuse admission under ss 135 and 137.

  • Applying the principle from Wilde v The Queen (1988) 164 CLR 365, the loss of a fair chance of acquittal through failure to follow the relevant law constitutes a substantial miscarriage of justice that the proviso cannot cure.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 112, 135, 137, 192(2)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Customs Act 1901 (Cth), s 233B

Cases
- Wilde v The Queen (1988) 164 CLR 365
- Zoneff v The Queen (2000) 200 CLR 234
- Melbourne v The Queen (1999) 198 CLR 1
- Stanoevski v R (2001) 202 CLR 115
- BRS v The Queen (1997) 191 CLR 275
- Dhanhoa v The Queen (2003) 199 ALR 547
- Gabriel v The Queen (1997) 76 FCR 279
- Li v The Queen (2003) 139 A Crim R 281
- R v Bartle (2003) 181 FLR 1
- R v Fuller (1994) 34 NSWLR 233
- R v Hamilton (1993) 68 A Crim R 298