Mirzazadeh v R [2016] NSWCCA 65

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mirzazadeh v R [2016] NSWCCA 65 Hearing dates: 18 April 2016 Date of orders: 29 April 2016 Decision date: 29 April 2016 Before: Hoeben CJ at CL at [1] Harrison J at [82] Schmidt J at [83] Decision: (1) The appeal against conviction is allowed. (2) The appellant's conviction for attempting to possess a commercial quantity of a border controlled drug is quashed. (3) There should be a re-trial on that count. Catchwords: CRIMINAL LAW – conviction appeal – attempt to possess an unlawfully imported substance – defence of duress primary issue in trial – evidence of duress given by accused and other witnesses – interaction of ss 10.2 and 13.3 of Criminal Code Act 1995 (Cth) – whether accused satisfied evidentiary onus – issue of duress taken from jury – error established – re-trial ordered. Legislation Cited: Criminal Appeal Act 1912 (NSW) – s 6(1) Criminal Code Act 1995 (Cth) – s 10.2, s 11.1, s 13.3, s 307.5 Cases Cited: Giourtalis v R [2013] NSWCCA 216 Lindsay v R [2015] HCA 16; 319 ALR 207 Oblach v The Queen [2005] NSWCCA 440; 65 NSWLR 75 R v Chiron [1980] 1 NSWLR 218 R v Tan Phuong Le (No 3) [2010] NSWDC 37 Taiapa v The Queen [2009] HCA 53; 240 CLR 95 The Queen v Khazaal [2012] HCA 26; 246 CLR 610 Weiss v The Queen [2005] HCA 81; 224 CLR 300 Category: Principal judgment Parties: David Arjang Mirzazadeh – Applicant Commonwealth Regina – Respondent Crown Representation: Counsel: Mr T Game SC – Applicant Mr P Neil SC – Respondent Crown