Azzi v R [2013] NSWCCA 249

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Azzi v R [2013] NSWCCA 249 Hearing dates: 5/06/2013 Decision date: 08 November 2013 Before: Beazley P at [1] Hidden J at [2] Fullerton J at [3] Decision: 1. Leave granted to appellant to file amended notice of appeal. 2. Appeal against conviction dismissed. Catchwords: CRIMINAL LAW - conviction appeal - supply of prohibited drug - credibility evidence - coincidence evidence Legislation Cited: Criminal Appeal Rules Drug Misuse and Trafficking Act 1985 Evidence Act 1995 Cases Cited: Peacock v R [2008] NSWCCA 264; 190 A Crim R 454 R v Chen [2002] NSWCCA 174; 130 A Crim R 300 R v Rymer [2005] NSWCCA 310; 156 A Crim R 84 R v Soma [2003] HCA 13; 212 CLR 299; 140 A Crim R 152 Category: Principal judgment Parties: John Azzi (Appellant) The Crown (Respondent) Representation: Counsel: P Lange (Appellant) S Dowling (Crown) Solicitors: Hanna Legal (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/268976 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-03-12 00:00:00 Before: King DCJ File Number(s): 2010/268976

Judgment 1BEAZLEY P: I agree with Fullerton J. 2HIDDEN J: I agree with Fullerton J. 3FULLERTON J: John Azzi appeals his conviction for supply of a prohibited drug, namely 16.4 grams of heroin, following a jury trial in the District Court. The Crown relied upon the deeming provisions in s 29 of the Drug Misuse and Trafficking Act 1985 to make out the supply charge laid contrary to s 25(1) of the Act. 4The appellant was sentenced to a term of imprisonment of 4 years and 6 months to commence on 18 February 2012 with a non-parole period of 3 years. There is no appeal against sentence. 5The appellant relies upon two grounds of appeal, each of which concerns a conversation he had with police during the execution of a search warrant at his home in the course of which the heroin was located in a wardrobe in his bedroom. The conversation under challenge related to 0.38 grams of methylamphetamine which was also found by police in the wardrobe. As to that drug, the appellant did not deny knowing the powder was where the police found it, but said that he did not know what it was and that he thought it was "sugar or probably sugar". The appellant later pleaded guilty in the Local Court to being in possession of the methylamphetamine. The earlier claim that he believed the powder was sugar or probably sugar was referred to on the appeal as "the sugar lie". 6The first ground of appeal (the only ground the subject of the filed notice of appeal) alleges error in the trial judge permitting the jury to use "the sugar lie" as credibility evidence contrary to s 108 of the Evidence Act 1995. In written submissions the Crown emphasised that credibility evidence is defined in s 101A of the Evidence Act as evidence relevant to the credibility of a witness or other person only because it affects the assessment of that person's credibility. In the Crown's submission, because the sugar lie was admitted in the trial as coincidence evidence under s 98 of the Evidence Act it was not admitted only as credibility evidence and, for that reason, the appellant's reliance on the operation of s 108A and s 108B in support of the error contended for in the first ground of appeal had no application. The Crown also submitted that the prosecutor's duty of fairness required the sugar lie to be led and this also displaced the operation of s 108A and s 108B of the Evidence Act. 7Following receipt of the Crown submissions, the appellant filed an amended notice of appeal alleging error in the admission of the sugar lie as coincidence evidence. Counsel for the appellant acknowledged that the second ground of appeal was drawn to meet the Crown's filed submissions addressing the first and (at that time) only ground of appeal. The appellant also conceded that Rule 4 of the Criminal Appeal Rules applied to the proposed second ground of appeal. 8The Court heard argument directed to the second ground of appeal reserving the question whether to grant leave to file the additional ground of appeal until determination of the appeal. For the reasons that follow, I propose that leave be granted to allow consideration of the second ground of appeal.