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Court of Criminal Appeal 27 August 2002

R v Muradian

[2002] NSWCCA 371

Drugs
NO QUESTION OF PRINCIPLE

Citation: Muradian v R [2002] NSWCCA 371
Court: NSW Court of Criminal Appeal
Date: 27 August 2002
Judge(s): Handley JA, Simpson J, Bell J

Background

The appellant was convicted in the District Court of importing prohibited goods into Australia, specifically 452.9 grams of pure ecstasy (MDMA), in breach of section 233B of the Customs Act 1901 (Cth). The trial was a circumstantial case. The appellant made no direct admissions about her knowledge of the contents of the suitcase she attempted to bring through Sydney airport.

The trial judge sentenced the appellant to a head sentence of five years and three months, with a non-parole period of three and a half years, after applying the discount mandated by section 16G of the Crimes Act 1914 (Cth) for a guilty plea or other applicable factors.

On appeal, the appellant challenged both her conviction and her sentence. Her primary argument was that the trial judge's directions to the jury on the mental element of the offence were legally deficient.

  • Whether the trial judge misdirected the jury on the knowledge required for a conviction of importing a prohibited import, by using language that allegedly lowered the required mental threshold
  • Whether the sentence imposed fell within the range available to the sentencing judge and warranted appellate intervention

Decision

The Court of Criminal Appeal found that, while parts of the trial judge's summing-up used imprecise language, the directions did not amount to a reversible misdirection. Handley JA noted that the impugned passage, which used phrases such as "may have reason to believe," "a significant real chance," "not quite right," and "suspicion of perhaps," was used when the judge was recounting the Crown's circumstantial case rather than formally stating the legal test. The Court read those phrases as consistent with the standard set by the High Court in Bahri Kural v The Queen (1987) 162 CLR 502.

Critically, the Court observed that knowledge is not a strict essential ingredient of the importation offence under section 233B. Under Kural, the required mental element is established if the accused was aware of a significant or real chance that their conduct involved the relevant prohibited act. The Court held that a person who "suspected that he or she was perhaps bringing narcotic goods into the country" would satisfy that test.

The final redirection the trial judge gave to the jury, though it did not specifically identify what the accused needed to have knowledge of, told the jury that the inference of knowledge must be the only rational inference and that otherwise they must have a doubt. Handley JA characterised this as, if anything, more favourable to the appellant than she was strictly entitled to under Kural. On the evidence, the Court also considered that a properly directed jury would inevitably have convicted, so no substantial miscarriage of justice had occurred.

On sentence, the Court rejected the submission that the trial judge's section 16G discount was lower than it could have been, and that the non-parole period was not at the upper end of the range. Those matters did not ground appellate intervention where the sentence was within the available discretionary range.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence refused

Key Takeaways

  • Under Bahri Kural v The Queen (1987) 162 CLR 502, the mental element for importing a prohibited import does not require proof of actual knowledge; awareness of a significant or real chance that the conduct involved the prohibited act is sufficient.
  • Imprecise language in a jury direction will not automatically constitute a reversible misdirection if, reading the summing-up as a whole, the jury was directed to apply a test consistent with the correct legal standard.
  • A person who suspected there was "perhaps" a prohibited import in their luggage was found, on the Court's analysis, to satisfy the Kural awareness threshold, as that level of suspicion reflects awareness of a real and significant chance.
  • No substantial miscarriage of justice arises from a flawed direction where the evidence was such that a properly directed jury would inevitably have reached the same verdict.
  • Sentencing decisions that fall within the range available to the sentencing court do not warrant appellate intervention merely because a larger discount or different non-parole period was theoretically open.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B
- Crimes Act 1914 (Cth), s 16G
- Criminal Appeal Act 1912 (NSW)

Cases:
- Bahri Kural v The Queen (1987) 162 CLR 502
- Pereira v DPP (1988) 63 ALJR 1