By Paul Gregoire and Ugur Nedim
Mahamad Haouchar was found guilty in respect of six firearm and drug offences in 2025. However, last week the man from the southwestern Sydney suburb of Yagoona successfully appealed his convictions to the New South Wales Court of Criminal Appeal (NSWCCA), as it was found the circumstantial evidence relied upon, didn’t establish guilt to a point “beyond a reasonable doubt”.
Haouchar’s conviction stemmed from NSW police having executed a warrant at a property in Yagoona on 28 April 2021. The search, which also involved a Lexus car, turned up various quantities of drugs, including MDMA, cocaine and heroin, along with four firearms, magazines and ammunition. Fifty-three items were taken away for forensic testing, some of which were regular household items.
Three guns were in a “Bulldogs bag” underneath the kitchen sink, whilst the fourth was located in the boot of the Lexus, and the drugs were in plastic bags secreted in various kitchen cupboards.
The Crown case included the suggested involvement of five co-accused in a joint criminal enterprise. All the evidence against Haouchar, however, was circumstantial, which meant it suggested guilt but didn’t directly prove it. The evidence consisted of DNA traces and fingerprints, and this is what placed all co-accused at the crime scene.
Haouchar’s DNA and fingerprints were found on items. NSW District Court Judge Sean Grant only found evidence of a relationship between him and Ismael Ratel, whose traces were also present. And as for Haouchar’s six convictions, there was no oral or documentary evidence establishing any link that had involved him. So, the findings of guilt solely relied upon circumstantial evidence.
Convictions now revoked
At a 2025 judge-alone trial, Haouchar faced 13 charges, and he was convicted on six of the offences. The charges included one count of participating in criminal group, contrary to section 93T of the Crimes Act 1900 (NSW). Yet, this crime, which carries up to 5 years, was not made out, as a group comprises of at least three people, and the evidence could only establish association with one other.
The accused was found guilty of four counts of possess unauthorised pistol, contrary to subsection 7(1) of the Firearms Act 1996 (NSW), which is a crime that carries a maximum penalty up to 14 years imprisonment, and it comprises of a person being in possession of a handgun without an accompanying licence.
The Yagoona man was also found guilty on one count of supplying a commercial amount of cocaine, contrary to subsection 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act). This offence carries maximums of up to 20 years prison time and/or a $385,000 fine.
The final charge that the judge found Haouchar guilty of consisted of one count of supplying an indictable amount of methamphetamine, contrary to subsection 25(1) of the DMT Act, which carries up to 15 years imprisonment and/or a $220,000 fine.
In terms of drug supply in NSW, the various offences are broken down into quantity categories, which include a small, traffickable, indictable, commercial or large commercial quantity, with the penalties rising alongside the quantity of a drug. And the corresponding penalties are set out within sections 32 and 33 of the DMT Act.
Schedule 1 of the DMT Act lists around 200 prohibited substances, plants, precursors and reagents, with a set of quantities for each substance. A commercial quantity of cocaine is at least 250 grams of the illicit substance and under 1 kilogram of it, while an indictable quantity of methylamphetamine is at least 5 grams but under 250 grams.
The only evidence that Haouchar and Ratel knew each other came from a police traffic stop 10 months prior to execution of the search warrant, when the former was a passenger in the latter’s car.
As for DNA evidence on the guns, mixtures of it were found on several of the weapons, whilst Haouchar’s DNA was found directly on the hammer of one firearm and the magazine of another. The appellant’s DNA was also found on two separate bottles, as well as on two shopping bags, one that held three bags of cocaine and another containing some methamphetamine.
Judge Grant then found Haouchar was guilty of six of the offences, and he sentenced the Yagoona man to 12 years imprisonment, with non-parole set at 8 years, on 10 March 2025.
Matters on appeal
Haouchar appealed his convictions to the NSW Court of Criminal Appeal on 27 May 2026. The current inmate did so based on four grounds. The main ground was that the six convictions found against his name at trial were unreasonable and weren’t supported by the evidence. The appellant also agreed with the court that the three other grounds were sub-grounds to this one.
The other grounds involved guilt being found in regard to six offences but not for the remaining ones comprising of an inconsistent outcome. Further, an error occurred as explanation was not provided for the inconsistency around convictions being dropped while others weren’t, and the last comprised of a claim that a failure to explain the enterprise between the accused and Ratel had been involved.
NSWCCA Justice Richard Cavanagh explained that the case against Haouchar was “entirely circumstantial”. His Honour then citied 2016’s High Court ruling The Queen v Baden-Clay, in which it was established that a jury cannot return a verdict of guilt unless there is no other “reasonable hypothesis other than the guilt of the accused” and this must rest on more than “mere conjecture”.
“As can be observed, to warrant conviction, circumstantial evidence must be inconsistent with any reasonable hypothesis other than the guilt of the accused,” his Honour clarified. “Further, all of the circumstances are to be considered in determining whether there is an inference consistent with innocence reasonably open on the evidence.”
The authority established in 2020’s NSWCCA Wiggins versus R insists that the accused doesn’t have to offer a scenario proving their innocence to the court, and the High Court’s 1990 case Shepherd versus the Queen found that circumstantial evidence acts cumulatively in eliminating other possibilities that might account for a crime that has been committed.
Justice Cavanagh then set out that in appeals like Haouchar’s the evidence must be reviewed, and he added that an essential element of all the convictions that were made out is that they involved a level of “possession”, which is a concept governed by established principles, which generally includes “physical control or custody”, which can be established through ownership of a property or a vehicle.
Joint possession had to be made out in this case, which meant that Haouchar and Ratel had shared control of the illicit items to the exclusion of all others, as per 2013’s NSWCCA case Lee versus R.
Possession under the Firearms Act involves a gun being “in or on any premises owned, leased or occupied by, or in the care, control or management of” the accused, “unless the court is satisfied that” it was brought to the premises on behalf of another person who owned it, or the accused didn’t know the firearm was present or based on evidence. Possession is not defined in the DMT Act.
The appeals court determination
Justice Cavanagh explained that there was no doubt the property was being use for illegal firearms and drug storage. Further, forensic samples linked Haouchar to several of the illicit items. But while flimsy evidence showed a relationship between the accused and Ratel, it couldn’t place him in relationships with the other co-accused and it could not establish a joint criminal enterprise.
His Honour then outlined that Judge Grant had considered the possibility of DNA being indirectly transferred onto the illegal items, which means transference other than direct contact with an item. The sentencing judge then dismissed the idea as speculative. But the NSWCCA justice asserted that the DNA experts at trial accepted this possibility and therefore, mere presence is not proof.
The classic 1978 NSW authority involving the Edward Filippetti case was then cited, which saw 800 grams of cannabis found under a cushion in a loungeroom of a house shared by six people, and the accused being convicted due to a small amount in his possession. Yet on appeal, his conviction was quashed as “exclusive physical control” in the communal area couldn’t be established.
“In my view, the Crown faced a similar difficulty in this matter. The onus was on the Crown to establish exclusive possession jointly with Mr Ratel,” his Honour continued, and added that no such control had been established, as all of four co-accused had been to the Yagoona property at some stage, and none of those people were found to be the occupier or lease holder of the premises.
The findings of guilt in relation two of the firearms gives rise to the same issue in the Filippetti case, his Honour insisted, as there was DNA present on these weapons that related to several of the co-accused.
Therefore, direct DNA evidence linking Haouchar to certain items didn’t reveal control, as it only showed he had touched these items at some time in the past. And based on this evidence, his Honour found the main ground of appeal had been made out.
The orders of the day
“For the reasons I have set out, I am not satisfied that the Crown established beyond a reasonable doubt the guilt of the applicant in respect of any of the counts of which he was found guilty,” Justice Cavanagh concluded. “In my view, the only rational inference arising from all of the evidence and, in particular, the forensic evidence was not the guilt of the applicant.”
“The only rational inference is not that the applicant had possession of each of the items to the exclusion of all others,” he added.
On 19 August 2026, Justice Cavanagh ordered that the convictions against Haouchar’s name be quashed, that his sentence be set aside and that his case be remitted to the Sydney District Court. And NSWCCA Justices Belinda Rigg and Helen Roberts both agreed with their colleague’s orders.
