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Court of Criminal Appeal 23 March 2001

Regina v Vergara

[2001] NSWCCA 24

Drugs
CRIMINAL LAW CUSTOMS ACT 1901 S 233B(1)(B) INTENT

Citation: Regina v Vergara [2001] NSWCCA 24
Court: New South Wales Court of Criminal Appeal
Date: 23 March 2001
Judge(s): Wood CJ at CL, McClellan J, Smart AJ

Background

The appellant was convicted by a District Court jury of importing not less than the trafficable quantity of cocaine into Australia, contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). He was sentenced to eight years' imprisonment with a non-parole period of five years.

The appellant arrived at Sydney Airport on a flight from Buenos Aires carrying a suitcase that Customs officers discovered contained cocaine. When interviewed by police, he denied all knowledge of the drugs. He told police the trip had been arranged by a friend, that suitcases were swapped in Panama by an unknown man, and that while he suspected something unusual was occurring, he had searched the case and found nothing.

Given those circumstances, the central issue at trial was whether the appellant had the necessary knowledge or intent to commit the offence. The trial judge directed the jury that the Crown had to prove either that the appellant actually knew the suitcase contained narcotic drugs, or that he was aware there was a significant or real chance that it did.

  • Whether the trial judge's directions on knowledge were correct, or whether the Crown was required to prove actual knowledge that the suitcase contained narcotics.
  • Whether "awareness of a significant or real chance" that the goods were present was sufficient to establish the requisite intent under s 233B(1)(b) of the Customs Act 1901.
  • Whether, when knowledge is inferred from circumstances, the jury must be directed that knowledge is the only rational inference available.

Decision

McClellan J, with whom Wood CJ at CL and Smart AJ agreed, dismissed the appeal. His Honour held that the trial judge's two-limb direction was correct and consistent with binding authority from both the High Court and the Court of Criminal Appeal.

The appellant had argued that the Crown was required to prove actual knowledge that the suitcase contained narcotics, relying on statements in Pereira v Director of Public Prosecutions (1988) 63 ALJR 1. McClellan J rejected that submission. His Honour explained that the question is one of intent, not merely knowledge in a narrow sense. Proof that an accused actually knew, or was aware that there was a significant or real chance, that prohibited goods were present is sufficient to establish the necessary intent.

McClellan J drew on the joint judgment of Mason CJ, Deane and Dawson JJ in Kural v The Queen (1987) 162 CLR 502, which confirmed that belief falling short of actual knowledge can sustain an inference of the requisite intention. Proceeding with conduct in circumstances where the accused was aware of a significant or real chance that the conduct involved the forbidden act is sufficient.

The Court was also satisfied that the trial judge had properly directed the jury to draw inferences of guilt only where guilt was the sole rational inference available, consistent with the requirements identified in Pereira. No error in the directions was established.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 233B(1)(b) of the Customs Act 1901, the Crown does not need to prove actual knowledge that imported goods contained narcotics; it is sufficient to establish that the accused was aware there was a significant or real chance that the goods were present.
  • The Court of Criminal Appeal confirmed that the relevant mental element is one of intent, and that belief falling short of actual knowledge can satisfy that element where the accused was aware of a likelihood that prohibited goods were involved.
  • A jury direction presenting two alternative bases for knowledge (actual knowledge, or awareness of a significant or real chance) accurately reflects the law as stated in Kural v The Queen (1987) 162 CLR 502 and related High Court authority.
  • In dismissing the appeal, the Court found no error in the trial judge's repeated reminders that guilt could only be inferred where it was the sole rational inference available on the evidence.
  • Decisions of this Court in Margaret Greatorex (1994) 74 A Crim R 496, R v Karam (1995) 83 A Crim R 416, and R v Yee Kam Lau (1998) 105 A Crim R 167 were identified as consistent with this approach.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B(1)(b)

Cases
- Pereira v Director of Public Prosecutions (1988) 63 ALJR 1
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Kural v The Queen (1987) 162 CLR 502
- Margaret Greatorex (1994) 74 A Crim R 496
- R v Karam (1995) 83 A Crim R 416
- R v Yee Kam Lau (1998) 105 A Crim R 167 (also cited as unreported, 2 December 1998)