R v Moussa (No. 2) [2002] NSWCCA 408

Reported Decision : (2002) 134 A Crim R 296

New South Wales Court of Criminal Appeal

CITATION : R v Moussa (No. 2) [2002] NSWCCA 408 FILE NUMBER(S) : CCA 60119/01 HEARING DATE(S) : 30/09/2002 JUDGMENT DATE : 4 October 2002

PARTIES : Regina v Victor Ian Moussa JUDGMENT OF : Spigelman CJ at 1; Howie J at 2; Smart AJ at 29

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0418 LOWER COURT JUDICIAL Kinchington DCJ OFFICER :

COUNSEL : R. Herps - Crown S. Odgers SC with M. Allen - Applicant SOLICITORS : S.E. O'Connor - Crown D J. Humphreys - Applicant CATCHWORDS : Criminal Practice and Procedure - application to re-open appeal - fresh ground of appeal - miscarriage of justice by the absence from trial of evidence of two witnesses who were available to defence but not called at trial. LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 - s 25 Evidence Act 1995 - s 66 CASES CITED: R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 Crisologo (1997) 99 A Crim R 178 DECISION : Application is granted, appeal is re-opened and allowed. Conviction and sentence quashed and new trial ordered.

IN THE COURT OF CRIMINAL APPEAL 60119/01

SPIGELMAN CJ HOWIE J SMART AJ

FRIDAY 4 OCTOBER 2002 R v Victor Ian MOUSSA (No 2) Judgment 1 SPIGELMAN CJ: I agree with Howie J. 2 HOWIE J: This is an application to re-open an appeal against conviction in order to argue a ground of appeal which was not relied upon when this Court, differently constituted, determined to dismiss the applicant's appeal against his conviction, see R v Moussa [2001] NSWCCA 427; 125 A Crim R 505. The orders of the Court, which determined the appeal and which were made on 15 November 2001, have not been perfected and this Court, therefore, has jurisdiction to entertain the present application. 3 The fresh ground of appeal asserts that there was a miscarriage of justice by the absence from the trial of evidence from two witnesses who were available to the defence but were not called in the District Court. There is a question as to whether the evidence is, strictly speaking, fresh evidence, but in my view it is unnecessary to resolve that question in the present case. 4 The applicant was convicted in the District Court of two counts of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act. There is no present need to review the evidence called at the trial: it is set out in some detail in the Court's earlier judgment. In summary it was the Crown's case that the applicant had in his possession ecstasy tablets inside a computer case found in the boot of his motor vehicle. There were two different types of ecstasy tablets present in the case and, in respect of one type, there was not less than a commercial quantity of the drug. 5 There was no dispute that police located the drugs in the applicant's motor vehicle after they stopped and searched it. What was very much in dispute was evidence given by those police officers that, at the time the drugs were located, the applicant admitted that the tablets belonged to him and made statements from which it might be inferred that he knew the nature of the substance they contained. These alleged admissions were the central plank in the Crown case. However, the admissions had not been recorded by electronic means because, when the applicant later attended the police station with a solicitor, he declined to be interviewed about the matter. 6 The appellant gave evidence at the trial denying that he had made the statements attributed to him. He said that he told the police that he was unaware of the existence of the computer case and its contents prior to the search of the vehicle. He also gave the jury an explanation as to how the computer case had come to be in his vehicle without his knowledge. I will refer to this matter more fully shortly. 7 The trial judge directed the jury that the real issue for their determination was whether they were satisfied beyond reasonable doubt of the truth of the evidence of the police officers concerning the alleged admissions. However, there was one matter that, in my view, would have adversely affected the credit of the applicant to a very significant degree. This was a defence exhibit that proved, by the end of the trial, to have been a forgery. The circumstances in which that exhibit came to be tendered and its relevance in the trial are set out in this Court's earlier judgment and it is unnecessary to repeat them. The applicant's explanation for his possession of that document was, to say the least, unconvincing. 8 The application to re-open is founded upon statements of two persons who, it is said, could give relevant evidence, which had it been called in the trial, might have resulted in the applicant's acquittal. It is conceded by Senior Counsel appearing for the applicant that the evidence was available at the time of the trial in that it was known to exist. But it is submitted that, for whatever reason it was not called, the applicant was deprived of the benefit of this evidence in circumstances that give rise to the possibility of a miscarriage of justice. 9 There is material before this Court explaining why it was that this ground of appeal was not relied upon at the earlier hearing. In brief the evidence is that the solicitor, who was acting for the applicant on the appeal, did not believe that the applicant could rely upon the evidence because its existence was known at the time of the trial and the failure to call the witnesses appeared, on the material then available to him, to have been a tactical decision of trial counsel. He had not made Senior Counsel, who appeared for the applicant on the hearing of the appeal, aware of the existence of the evidence. At the hearing of this application the Crown did not seek to cross-examine the solicitor nor did it oppose the application on any basis other than that the failure to call the evidence at the trial did not give rise to the possibility of a miscarriage of justice. 10 One witness who is the subject of this application is the applicant's cousin, Eddie Dib. He could give evidence relevant to the issue of the reliability of the police officers as to the admissions allegedly made by the applicant during the search of his vehicle. In order to understand the proffered material it is necessary to refer briefly to the evidence on this matter at the trial. 11 The applicant and his cousin were passengers at the time the vehicle was pulled over by police. After the police had ascertained that the applicant owned the vehicle, they commenced to search it. The applicant was standing alongside Constable Zimmerman when he located the tablets in the computer bag: The evidence of the officer as to the conversation that there took place was as follows: …I said, "Are these yours?" Mr Moussa said: "Yes". I said, "Tell me what they are. He said, "They're musks". I said, "All of them? There is quite a few of them." He said, "Yes". I said "Why are they all in plastic money bags?" He said, "That's the way they come when you buy them wholesale."