New South Wales Court of Criminal Appeal CITATION : R v Mohamed Zreika [2001] NSWCCA 57 FILE NUMBER(S) : CCA 60151/00 HEARING DATE(S) : 5 March 2001 JUDGMENT DATE : 5 March 2001 PARTIES : Regina Mohamed Zreika JUDGMENT OF : Spigelman CJ at 1, 28, 30; Sperling J at 2; Carruthers AJ at 29 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/2114 LOWER COURT JUDICIAL English DCJ OFFICER : COUNSEL : G E Smith for the Crown A C Haesler for the Appellant SOLICITORS : S E O'Connor for the Director of Public Prosecutions D J Humphreys for the Appellant CATCHWORDS : Criminal trial - Jones v Dunkel direction - whether accused could be expected to call witnesses - need for caution in deciding whether to give direction at all - if given, need for direction as to possible explanation for witnesses not being called LEGISLATION CITED : Criminal Appeal Act 1912, s 6 Supreme Court Rules, r 4 Buckland (1977) 2 NSWLR 452 CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Scott [2000] NSWCCA 187, (1999) 112 A Crim R 543 Taufua [1999] NSWCCA 205 DECISION : Appeal allowed. Conviction quashed. New trial ordered. - 9 -IN THE COURT OF CRIMINAL APPEAL No 60151/00 SPIGELMAN CJ SPERLING J CARRUTHERS AJ MONDAY 5 MARCH 2001 Regina v Mohamed Zreika JUDGMENT 1 SPIGELMAN CJ: I would like Sperling J to deliver the first judgment. 2 SPERLING J: On 15 November 1999 the appellant was indicted in the District Court on one count of deemed supply of a prohibited drug, heroin, in that he had possession of a quantity of the drug which was not less than the trafficable amount. 3 On 18 November 1999 a jury returned a verdict of guilty. The Crown case was that the appellant was the lessee of a home unit at Yagoona, that he was living there until at least 11 November 1998 and that the drugs were found on the premises in the course of a police raid on that day. 4 There was evidence that the appellant leased the unit from the Department of Housing. The Crown case was that the appellant was in occupation of the unit was fortified by evidence of documents found on the premises, being a passport, an airline ticket, a bank cheque and telephone bills, all in the appellant's name. 5 The accused gave evidence. He said that he had been living apart from his wife in the unit but that, shortly before 11 November, they had become reconciled. He said his wife had returned from overseas on 7 November and that, between that date and 11 November, he had been living with her at premises in Ryde. He said the drugs were not his and he had no knowledge of whose they were or who had brought them to the Yagoona unit and placed them there. 6 The accused's case went further than a mere denial. He also sought to raise alternative explanations for the presence of the drugs on the premises. First, there was a suggestion that the police could have corruptly planted the drugs on the premises. In that regard, the appellant relied on evidence adduced in cross-examination of police witnesses that the search had been carried out in his absence and in the absence of any independent person, and that the video record of the search made by the police did not commence until some 25 minutes after the search began. 7 Secondly, the appellant gave evidence designed to raise the possibility that the drugs could have been the property of others who, he said, had access to the premises. He said that his brother, Ahmed Zreika, and a nephew, Nasser Zreika, had keys to the unit. He said that he had told Nasser that he would not be at the unit as from 7 November, that he would be living with his wife elsewhere, and that he would be giving up the unit. 8 The appellant went to the unit on 11 November and it was then that he was apprehended by police and arrested. He declined to be interviewed by police. He said in his evidence he had gone to the unit only to pick up his mail. He said he did not have a key to the unit with him on that occasion. The police acknowledge that he was searched but could not remember if a key to the unit had been found on him. So there was no evidence contradicting the appellant's evidence in that regard. 9 Then there was evidence adduced from the police witnesses in cross-examination that documents in the names of other persons were found in the unit. The appellant said most of those persons were unknown to him. There was no evidence to the contrary. He said he did not know who was living in the unit as at 11 November. 10 Having been found guilty by the jury, the appellant was sentenced on 8 March 2000. He has appealed against conviction and sentence. 11 There are two grounds of appeal against conviction: (1) Her Honour erred in failing to direct the jury the onus was on and remained on the prosecution to negate possession in others. (2) Her Honour erred in the directions to the jury about the failure of the appellant to call his brother and nephew. 12 It is convenient to deal with the grounds of appeal in reverse order. In the course of her summing-up the trial judge said: "The Crown says that it has discharged the onus of establishing that the accused had in his possession the heroin because it has proved beyond reasonable doubt that he was the occupier of those premises at 1/89 Glassop Street, Yagoona." 13 Her Honour went on to review the accused's evidence, including his evidence that he was living elsewhere on 11 November 1998, that his brother and nephew had keys to the premises at the time and that, when he went to the unit on that date, he did not have a key to the unit with him. 14 Her Honour said: "You have also heard evidence that the accused was not the only person who had keys to the unit, his brother and his nephew also had access to the unit. You have not heard from either of these two gentlemen. Where it appears there is a witness who could be expected to have been able to give relevant evidence but has not been called, you are not entitled to speculate about what that person might or might not have said, but where that witness is a person who in the ordinary course you would expect to have been called and no satisfactory explanation for the failure to call this witness has been given, you are entitled to draw the inference that their evidence would not have assisted the accused's case." The direction was from Jones v Dunkel (1959) 101 CLR 298. Nothing further of relevance was said in relation to the appellant's failure to call the brother and nephew. 15 The giving of a Jones v Dunkel direction in criminal trials was approved by this court in Buckland (1977) 2 NSWLR 452. The implications in relation to absent witnesses were reviewed by Carruthers AJ in Taufua [1999] NSW CCA 205. 16 It is to be noted that, in Buckland, Street CJ put an important rider on the use of the direction (at 459): "In criminal proceedings, however, the making of a comment or the indication of the available inference will be attended by a marked degree of caution, inasmuch as in many cases the absence of a witness either for the Crown or the accused might well be explicable upon grounds not readily capable of proof. If it is suspected that there may be some valid reason for a witness not being called, then, in a criminal trial in particular, a careful appraisal is requisite before commenting on the absence of that witness either in address or in the summing up." 17 As occurred in the case of Taufua, the jury received no such assistance in this case. The jury should have been informed, at a minimum, in the present case, that, if the relevant witnesses were in a position to give truthful evidence which would have assisted the appellant, the evidence would necessarily have involved them in having access to premises where a large cache of illicit drugs had been found. They would, accordingly, have been entitled to claim privilege against self-incrimination. The question of a certificate would then have arisen with uncertain outcome. At a minimum, the jury should have been informed of this complication in evaluating whether the appellant should have been expected to call the witnesses. 18 If the direction was to be given, the jury should also have been warned to consider the possibility that, if called, these witnesses might have chosen to lie rather than either to tell the truth or claim privilege in order to deflect suspicion from themselves; and that this would or might occur, if they were called, may have been known to the appellant. 19 That is but one feasible explanation for not calling the absent witnesses in a case such as this. There were other possible explanations. There may have been threats if the accused sought to call the witness, or fear of retaliation if he did. If that was the case the accused may have thought it unwise to disclose the explanation for not calling the witnesses. 20 In such a case as this, if the direction is to be given, the jury would have to be warned, without necessarily being over-specific, that there may be an explanation that has not been disclosed because the accused has reasons for not disclosing it. That is even more so where the absent witnesses are members of the accused's family. One cannot know what under-currents might have come to bear on a decision not to require relatives to testify in such circumstances. 21 In Scott [2000] NSW CCA 187, (2000) 112 A Crim R 543, an appeal was allowed in a case where an unqualified Jones v Dunkel direction was given. The witnesses not called by the accused were alleged by the Crown to be accomplices. Greg James J said (at [34]) as follows: "To suggest it was open to conclude that the evidence of those persons would not have assisted the case of the appellant was such as to divert the jury. To suggest that they might consider that the appellant should have called those witnesses was entirely wrong. On the Crown case, the witnesses were criminally complicit with the appellant. On the defence case, they, if they were heroin suppliers, had manipulated and deceived the appellant. The Crown's reluctance or inability to call them was not elucidated but the explanation for their absence in the Crown case may have been reasonable. It was not reasonable to suggest that in any way those witnesses should have been called in the appellant's case. The prospect that the jury might, from their absence, think that their evidence might not have assisted the accused's case was, at the least, seriously confusing if not inevitable." His Honour demonstrated an abundance of support for this approach in his review of the authorities from Buckland onwards. 22 It may be doubted that it will ever be appropriate, in a criminal trial, for a judge to give a Jones v Dunkel direction against an accused in relation to absent witnesses, where the witnesses are themselves open to suspicion on the Crown case or on the accused's account of events. If it is to be done in such a case, the direction must be hedged in the appropriate information concerning self-incrimination privilege and appropriate instruction concerning the kind of further considerations which moderate the force of direction in such a case. 23 At a minimum, the absence of information and assistance to the jury along the lines I have mentioned, rather than the direction standing alone, as it did in the present case, is erroneous. 24 There is a serious possibility that the unqualified direction may have affected the result. That is a miscarriage of justice. The proviso to s 6 of the Criminal Appeal Act, 1912 does not therefore apply. 25 Rule 4 applies, but the error was fundamental to the way the jury was to evaluate the evidence in relation to an important aspect in the case. In its unqualified form the direction was a powerful and unwarranted determination delivered with the force of judicial authority. I would, accordingly, grant leave pursuant to r 4 to rely on this ground of appeal. 26 It is unnecessary for me to decide the first ground of appeal in view of what I have said in relation to the second ground. 27 My conclusion is as follows. I would allow the appeal, quash the conviction and order a new trial. 28 SPIGELMAN CJ: I agree. 29 CARRUTHERS AJ: I also agree. 30 SPIGELMAN CJ: The orders are as indicated. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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