BOUJAOUDE, Elia Elrob v R [2008] NSWCCA 35

BOUJAOUDE, Elia Elrob v R [2008] NSWCCA 35

Although the indictment was defective by particularising a quantity which did not constitute a 'commercial quantity' at the time of the offence, it nonetheless disclosed the offence under s 25(2), and the particulars could be amended. The defect was not jurisdictional and did not invalidate the indictment. The jury's findings established the elements for the s 25(1) offence, so the court substituted a conviction for supplying a prohibited drug under s 7(2) of the Criminal Appeal Act 1912 and remitted the case for sentencing.

Jurisdiction
Australia
Judgment Date
29 February 2008
Procedural Posture
Criminal Appeal / Appeal Against Conviction Prior to Sentencing
Outcome
Appeal allowed; conviction quashed; conviction for lesser offence substituted; remitted for sentencing
Legal Topics
['validity of Indictment' 'particularisation in Indictments' 'supplying Prohibited Drug' 'application of Amended Criminal Statutes' 'jurisdiction']
['criminal Law'] ['validity of Indictment' 'particularisation in Indictments' 'supplying Prohibited Drug' 'application of Amended Criminal Statutes' 'jurisdiction']

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Procedural Posture

Criminal Appeal / Appeal Against Conviction Prior to Sentencing

Legal Issues

  1. 1 ["Whether the indictment was invalid as it did not disclose an offence known to the law given legislative amendments that changed the 'commercial quantity' threshold after the offence date" 'Whether a conviction under such an indictment could stand' "Whether the court could substitute a conviction for a lesser offence based on the jury's findings"]

Ratio Decidendi

Although the indictment was defective by particularising a quantity which did not constitute a 'commercial quantity' at the time of the offence, it nonetheless disclosed the offence under s 25(2), and the particulars could be amended. The defect was not jurisdictional and did not invalidate the indictment. The jury's findings established the elements for the s 25(1) offence, so the court substituted a conviction for supplying a prohibited drug under s 7(2) of the Criminal Appeal Act 1912 and remitted the case for sentencing.

Court Disposition

Appeal allowed; conviction quashed; conviction for lesser offence substituted; remitted for sentencing

Orders

  • ['Time for filing the notice of appeal extended to 15 June 2007' 'Appeal allowed and conviction quashed' 'Conviction for supplying a prohibited drug (s 25(1) Drug Misuse and Trafficking Act 1985) substituted' 'Proceedings remitted to the District Court for sentencing']