REGINA v Karim John ELFAR [2000] NSWCCA 255

Reported Decision : [2000] 115 A Crim R 64

New South Wales Court of Criminal Appeal

CITATION : REGINA v Karim John ELFAR [2000] NSWCCA 255 FILE NUMBER(S) : CCA 60755/99 HEARING DATE(S) : 3 July 2000 JUDGMENT DATE : 21 July 2000

PARTIES : REGINA v Karim John ELFAR JUDGMENT OF : Mason P at 1; Sully J at 7; Sperling J at 48

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0880 LOWER COURT JUDICIAL Rummery DCJ OFFICER :

COUNSEL : R D Cogswell SC - Crown S J Odgers/C. Simpson - Appellant SOLICITORS : S E O'Connor - Crown Michael Croke & Co - Appellant

LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 (NSW) Criminal Appeal Rules Gilbert v The Queen (2000) 170 ALR 88 Ben Rehavi (1998) 101 A Crim R 569 CASES CITED: Maxwell (1988) 1 WLR 1265 Naylor (1910) 5 CrAppR 19 Elliott and Hitchins (1983) 9 A Crim R 238 DECISION : Appeal against conviction dismissed - Leave to appeal against sentence granted - Appeal against sentence dismissed

IN THE COURT OF CRIMINAL APPEAL

CCA 60755/99

MASON P SULLY J SPERLING J

Friday 21 July 2000

REGINA v Karim John ELFAR

JUDGMENT

1 MASON P: I have had the benefit of reading in draft the judgments of Sully J and Sperling J. I agree with the orders proposed by Sully J and with the reasons of my colleagues. 2 In this case the trial did not miscarry because the verdict, stemming from proper directions and supported by the evidence, excluded the lesser offence under s24(3) of the Drug Misuse and Trafficking Act 1985. 3 In my view, the matter is concluded by Ross v The Queen (1922) 30 CLR 246 at 254, as explained in R v Evans and Lewis [1969] VR 858, Elliot and Hitchins (1983) 9 A Crim R 238 and Gilbert v The Queen (2000) 170 ALR 88. 4 The Court was invited to apply Rehavi (1998) 101 A Crim R 569, a decision of the Court of Appeal of Queensland. The appellant invoked that case as authority for the proposition that the presence of equivocal evidence means that a lesser offence available on one view of that evidence must be left to the jury despite the tactical decision of trial counsel. Rehavi is distinguishable because this was on the evidence an "all or nothing" case as regards the quantity of amphetamine the subject of the intended manufacture. 5 I have reservations about the correctness of the principle for which Rehavi appears to be authority. I have no difficulty in accepting that Pemble v The Queen (1971) 124 CLR 107 extends beyond the field of murder/manslaughter. However, I wish to reserve my position as to whether a trial would miscarry merely because an alternative (lesser) offence available on the evidence is not left to the jury. The judgment in Rehavi refers to passages in the reasoning of Benbolt (1993) 60 SASR 7, 67 A Crim R 11, a judgment of the Full Court of South Australia and Regina v Maxwell [1988] 1 WLR 1265 a judgment of the English Court of Appeal. The three decisions contain passages suggesting that there are "some cases" in which the jury should be given the opportunity to return a lesser verdict even though the lesser offence is not charged, indeed even though the point is not taken by the defence. 6 I have three difficulties with this line of authority about which I would require further assistance before being comfortable in applying Rehavi: 1. It appears to elide the separation of executive and judicial functions in the administration of criminal justice. The function of determining what charges should be laid and prosecuted is essentially that of the Executive ( Ridgeway v The Queen (1995) 184 CLR 19 at 32-33, Maxwell v The Queen (1996) 184 CLR 501).