Zreik v R

1. [1]

   THE COURT: This matter was heard on 3 June 2026. At the conclusion of brief argument, the Court made the following orders:

2. [2]

   These are our reasons for making those orders.

Relevant facts

1. [3]

   On 8 February 2023, the applicant departed Australia travelling to Johannesburg, South Africa. On 16 February 2023 the applicant returned, arriving at Sydney Airport.

2. [4]

   Upon arrival in Sydney, the applicant’s baggage was examined. Ten bubble wrapped statues were found. In response to questioning, the applicant said he had been travelling with a Mr Chaloub. Mr Chaloub’s baggage, which was also examined, was tested and returned positive results for methamphetamine. The statues in the applicant’s baggage were tested and some opened, revealing packets of white powder that were tested and were revealed to be methamphetamine. In total, 7,987.4g of methamphetamine was found in the 10 statues in the applicant’s luggage.

3. [5]

   The applicant was questioned about his bags and their contents by an Australian Border Force officer:

4. [6]

   In a subsequent interview with police, the applicant denied any involvement with the statues containing drugs. He stated that some people he trusted offered him an expenses-paid holiday and told him he had to come back with a couple of suitcases with clothes in them and “possibly a couple of diamonds.” He and Mr Chaloub had been given the suitcases the day before they left. The applicant said he hadn’t opened the suitcases and did not know the lock combinations. He said that he had been explicitly guaranteed that nothing illegal was contained in the bags. Apart from travel expenses and $2,000 of spending money, he understood that he was going to get 5 or 10 thousand dollars for bringing the cases back.

5. [7]

   On 17 February 2023, search warrants were executed at the residences of Mr Chaloub and Mr Garth Zreik, the applicant’s brother. Data was extracted from their phones. Phone records were examined revealing several conversations between Garth Zreik and Mr Chaloub in which they appeared to be organising travel, luggage, and payment.

6. [8]

   The applicant was charged with one count of importing a commercial quantity of border-controlled drugs contrary to s 307.1(1) of the Criminal Code (Cth). A joint trial with Mr Chaloub ran from 12 May 2025 to 25 May 2025 in the District Court at Sydney before her Honour Judge O’Rourke SC. The applicant pleaded not guilty, as did his co-accused, Mr Chaloub.

7. [9]

   It was the Crown case that the applicant and Mr Chaloub travelled together from Australia to South Africa and that they expected to be paid cash, between $15,000–$18,000, for their task. The central issue in the applicant’s trial was whether the applicant knew there was a border-controlled drug in his suitcase when he entered Australia, or whether he was reckless as to that possibility.

8. [10]

   The applicant’s case was that his brother told him about the chance to financially benefit from a trip to South Africa to bring back diamonds to Sydney and that he trusted that his brother was telling the truth. The applicant’s case was that he thought he was importing diamonds and did not know about the drugs.

9. [11]

   The prosecution called the applicant’s brother, Garth Zreik, as a witness. Garth Zreik gave evidence in chief favourable to the applicant. Garth Zreik stated he had “recruited” the applicant and Mr Chaloub for the purpose of importing diamonds. The prosecution was granted leave pursuant to s 38 of the Evidence Act 1995 (NSW) to cross examine Garth Zreik as unfavourable.

10. [12]

    Prior to the Crown’s closing submissions, the following exchange took place between the trial judge and the Crown Prosecutor about a direction under s 165 of the Evidence Act:

11. [13]

    Senior Counsel for the applicant did not express a view about the proposed unreliability direction following the above exchange. The trial judge did not seek the view of defence counsel on the form the proposed direction should take.

12. [14]

    The trial judge directed the jury in relation to the evidence of Garth Zreik in her Honour’s summing up, as follows:

13. [15]

    The underlined directions above were modelled on the standard accomplice directions published on the NSW Judicial Commission website and closely mirrored the directions that this Court held to be erroneous in Restricted Judgment [2025] NSWCCA 210 at [284], a decision handed down after the present trial. In that case, which dealt with essentially the same ground of appeal, this Court said the following:

14. [16]

    On 29 May 2025, the applicant was found guilty, as was his co-accused. Sentencing proceedings were conducted on 8 August 2025 and sentence was pronounced on 11 September 2025. The applicant and his co-accused were each sentenced to 9 years of imprisonment with a non-parole period of 5 years.

Notice of Appeal

1. [17]

   By a Notice of Appeal filed 24 March 2026, the applicant set out the following grounds of appeal on which he relies:

2. [18]

   Section 165 of the Evidence Act provides:

3. [19]

   The Crown conceded that it was open to conclude that ground 1 was made out. In addressing whether a s 165 direction is appropriate, this Court in Restricted Judgment [2025] NSWCCA 210 identified the three questions quoted above at [15] as requiring an answer.

4. [20]

   As to the first matter, it was common ground that the evidence adduced was sufficient for the Court to find that Garth Zreik “might reasonably have been supposed to have been concerned in the events”.

5. [21]

   As to the second matter, the text of s 165(3) of the Evidence Act provides that a judge need not provide an unreliability direction to the jury on the request of a party where “there are good reasons for not doing so”. There are several cases gathered together in Restricted Judgment [2025] NSWCCA 210 that provide that the fact that the evidence was exculpatory of the accused would provide a sufficient basis to establish a “good reason” for not complying with a s 165(2) request. Perhaps the most prominent of those cases are:

   1. (1)

      Jamieson, Elliott & Blessington (1992) 60 A Crim R 68 (a pre-Evidence Act case) where a direction was given regarding evidence given by accomplices that was exculpatory of one of the accused (Jamieson) but damaging to the remaining two. It was determined that warnings that related to the evidence given by the accomplices should have been confined to the parts of the evidence which supported the Crown case against one or other of the accused, that is, that evidence given by the witnesses that was supportive of the accused should not have been the subject of the unreliability direction.

   2. (2)

      R v Robinson [2003] NSWCCA 188, where most of the witnesses to a gaol murder were other inmates. One of those witnesses gave evidence favourable to the accused but his evidence was caught by the unreliability warning given by the trial judge. This Court (Beazley JA, Hidden J and Carruthers AJ) applied the reasoning employed in Jamieson:

6. [22]

   We are satisfied that authority in this Court supports the proposition that a warning under s 165(1)(d) will not usually be appropriate where the evidence is favourable to the accused or does not advance the prosecution case. That is because in such a case there will be “good reasons” pursuant to s 165(3) not to give the direction.

7. [23]

   In the present case, the evidence given by Garth Zreik was exculpatory and favourable to the applicant. While the text in subs 165(1) and 165(2) does not support the proposition that a warning under s 165 cannot be given in relation to evidence favourable to the accused, a warning under s 165(1)(d) will not usually be appropriate where the evidence is favourable to the accused or where it does not advance the prosecution’s case. This is because there will generally be “good reasons” pursuant to s 165(3) not to give that direction: Restricted Judgment [2025] NSWCCA 210 at [334]; R v Robinson [2003] NSWCCA 188 at [183]; Jamieson & Ors (1992) 60 A Crim R 68; R v Baker [2001] NSWCCA 151; R v Ayoub [2004] NSWCCA 209 at [15]-[16]; and Proud v R (No 2) [2016] NSWCCA 44 at [73]-[74].

8. [24]

   As to the third matter, we have concluded that the warning given here had the capacity to impact the result of the trial and the reasoning of the jury. We accept the joint submission of the parties that it would be inappropriate to apply the proviso: Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872.

9. [25]

   Even in the absence of an objection by the defence when a request for direction was raised prior to summing up, the Court should not have given the direction in this case: R v Robinson at [184]. The direction was material as it related to evidence given that was exculpatory to the applicant. Garth Zreik was an important witness. If his evidence were to be accepted, that would have provided significant support for an acquittal. The warning given by the trial judge used strong language. It should not have been given.

10. [26]

    For these reasons we upheld ground 1 of the appeal and made the orders set out at [1] above.

11. [27]

    The lies the subject of ground 2 are those quoted at [5] above. At the outset of the application for leave to appeal, Mr Game SC who appeared with Ms McMahon for the applicant, said:

12. [28]

    It is thus unnecessary to say any more about ground 2.

Conclusion

1. [29]

   For these reasons we made the orders at [1] above. We note that subsequent to the orders being made an order was made listing an application for bail before Boulten J at 2 pm on Tuesday 9 June 2026.

2. [30]

   This judgment will be published on Caselaw for a brief period and then restricted, pending the re-trial of the applicant.

3. [31]

   The Commonwealth Director of Public Prosecutions is directed to inform the Registrar of the Court of Criminal Appeal when the re-trial has been completed and the judgment can be unrestricted.