AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 14 July 2000

R v Shafiei

[2000] NSWCCA 254

Also reported as 115 A Crim R 45
Drugs

Citation: R v Shafiei [2000] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 14 July 2000
Judge(s): Fitzgerald JA; Sperling J; Whealy J

Background

The appellant was charged with possessing a prohibited import, namely opium, in a quantity not less than the trafficable quantity under the Customs Act 1901 (Cth). The charge arose from a controlled delivery operation in September 1997, in which customs and federal police intercepted a parcel from Bulgaria containing approximately 2 kilograms of opium concealed inside painted wooden icons. The parcel was addressed to the appellant at his home in Whalan, NSW.

Before delivering the parcel, law enforcement removed most of the opium and substituted black plasticine, retaining only a small sample of genuine opium inside the icons. The controlled delivery sample delivered to and received by the appellant contained some opium, but its precise weight was not proved at trial. Under Schedule VI of the Customs Act, the trafficable quantity for opium is 2 grams.

The trial proceeded on the assumption that the quantity of opium the appellant actually possessed was not less than the trafficable quantity, because the total quantity originally intercepted was well in excess of that threshold. The appellant was convicted and sentenced to six and a half years imprisonment. He appealed on two grounds: misdirection by the trial judge and manifest excess in sentence.

  • Whether the trial judge misdirected the jury by directing them that the appellant possessed a quantity of opium not less than the trafficable quantity, when no evidence was adduced proving that the controlled delivery sample actually received by the appellant met that threshold
  • Whether the offence under section 233B(1)(c) of the Customs Act requires proof of the quantity the accused actually possessed, rather than the quantity originally imported or intended to be possessed
  • Whether leave to appeal on the misdirection ground should be granted under rule 4 of the Criminal Appeal Rules 1952
  • Whether, if the appeal was allowed, a new trial was the appropriate remedy

Decision

The Court held that the offence under section 233B(1)(c) is concerned with what the accused actually possessed, not with what he or she intended to possess or with what was originally imported. The prosecution's submission that public interest favoured a broader interpretation was rejected. The Court noted that trafficable quantities under Schedule VI are small (2 grams in the case of opium), and that controlled delivery samples slightly exceeding those thresholds can readily be arranged by law enforcement, so the narrower construction creates no undue practical difficulty.

The critical problem at trial was that no evidence was placed before the jury establishing that the controlled delivery sample delivered to and received by the appellant weighed at least 2 grams. The trial judge directed the jury on the basis that this element was satisfied by reference to the much larger quantity originally intercepted. Both the trial judge and the parties proceeded on the mistaken assumption that proof of the imported quantity was sufficient.

Whealy J, with whom Fitzgerald JA and Sperling J agreed, found that the misdirection was a departure from the essential requirements of the law that went to the root of the proceedings, warranting the grant of leave. Because there was no evidence before the jury that the controlled delivery sample in the appellant's possession was not less than a trafficable quantity, the conviction could not stand. The Court described the error as so fundamental that a mistrial was inescapable.

Both parties accepted that a new trial, rather than re-sentencing on a lesser charge, was the appropriate course. The Court made orders accordingly, and did not address the sentence ground.

Orders Made

  • Leave granted pursuant to rule 4 of the Criminal Appeal Rules 1952
  • Appeal allowed
  • Verdict of the jury of 14 April 1999 set aside
  • New trial ordered

Key Takeaways

  • Under section 233B(1)(c) of the Customs Act 1901 (Cth), the aggravating circumstance of possessing not less than a trafficable quantity requires proof of the quantity the accused actually possessed, not the quantity imported or intended to be possessed.
  • Where a controlled delivery reduces the quantity of a prohibited drug before it reaches the accused, the prosecution must adduce evidence that the reduced quantity delivered to and received by the accused still meets or exceeds the relevant trafficable quantity.
  • A misdirection that proceeds on the assumption that no such separate proof is required goes to the root of the proceedings and qualifies for leave to appeal under rule 4 of the Criminal Appeal Rules 1952.
  • The distinction between a conviction carrying a maximum of 2 years imprisonment and one carrying a maximum of 25 years turned entirely on whether the quantity element was proved, illustrating the gravity of the failure to lead the necessary evidence.
  • Failing to prove a quantity element at trial does not automatically result in re-sentencing for the lesser offence; where both parties accept it is appropriate, the Court of Criminal Appeal will order a new trial instead.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), ss 233B(1)(c), 235(2)(d)(i), 235(2)(e), Schedule VI
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules 1952 (NSW), rule 4
- Evidence Act 1995 (NSW)

Cases
- Kingswell v The Queen (1985) 159 CLR 264
- The Queen v Meaton (1986) 160 CLR 359
- Cheng & Chan (1997) 107 A Crim R 460
- The Queen v Yuill (1994) 77 A Crim R 314
- Tripodina, Morabito (1988) 35 A Crim R 183