AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
10
Court of Criminal Appeal 19 August 2004

Regina v Narongchai Saengsai-Or

[2004] NSWCCA 108

Also reported as (2004) 61 NSWLR 135
Drugs

Citation: Regina v Narongchai Saengsai-Or [2004] NSWCCA 108
Court: NSW Court of Criminal Appeal
Date: 19 August 2004
Judges: Wood CJ at CL, Simpson J, Bell J

Background

The appellant, a Thai-born Victorian resident, was arrested at Sydney Airport after returning from Vietnam carrying two bottles of cognac that had been hollowed out and filled with heroin. The bottles contained 902.3 grams of pure heroin. He had been travelling with associates to ostensibly explore a business opportunity importing car parts.

The appellant's case was that he had agreed to carry the bottles as a favour for one of his travelling companions, believing them to be ordinary alcohol. He said he had been dependent on his companions for all communication in Vietnam and was unaware of the bottles' true contents. His companion later visited him in custody and, according to the appellant, threatened his family.

The appellant was convicted in the District Court of importing prohibited imports contrary to s 233B(1)(b) of the Customs Act 1901 (Cth) and sentenced to nine years' imprisonment with a six-year non-parole period. He appealed to the Court of Criminal Appeal on grounds including misdirection on the fault element of the offence and inadequate directions concerning the reliability of the Crown witnesses.

  • What fault element or elements apply to the offence of importing prohibited imports under s 233B(1)(b) of the Customs Act 1901 (Cth), having regard to the general principles of criminal responsibility in Chapter 2 of the Commonwealth Criminal Code?
  • Whether the trial judge misdirected the jury on the fault element of the offence, specifically concerning what the accused needed to know about the nature of the goods he was importing.
  • Whether the trial judge gave adequate directions to the jury about assessing the reliability of the Crown's key witnesses, two individuals with potential interest in the outcome of the proceedings.

Decision

On the fault element question, the Court found that the application of Chapter 2 of the Criminal Code Act 1995 (Cth) to offences under the Customs Act altered the mental element required for conviction. The critical question was whether the accused knew that what he was carrying was a narcotic substance. The trial judge's directions had not adequately conveyed this requirement to the jury, constituting a misdirection on the central element of the offence.

On the issue of witness reliability, the Court found that the trial judge had also failed to give adequate directions concerning the evidence of the two Crown witnesses, who were the appellant's companions and had a potential interest in the outcome of the trial. Because the Crown's case depended heavily on the jury's assessment of these witnesses against the appellant's account, the absence of appropriate reliability directions was a significant error. The Court concluded this failure may have caused the appellant to lose a chance of acquittal that was fairly open to him.

The Court rejected a submission by the Crown that the proviso should be applied to dismiss the appeal despite the errors. Given the misdirection on the fault element and the inadequate reliability directions operating together, the proviso could not cure the resulting miscarriage of justice. The Crown's invitation to apply the proviso was declined.

The Court did not separately address the good character direction ground in detail, having already identified errors sufficient to warrant a new trial.

Orders Made

  • Appeal allowed
  • New trial ordered

Key Takeaways

  • Under Chapter 2 of the Commonwealth Criminal Code, the fault element for importing prohibited imports contrary to s 233B(1)(b) of the Customs Act requires that an accused knew that what was being imported was a narcotic substance. A direction that omits or inadequately conveys this element is a misdirection on the central question before the jury.
  • The Court of Criminal Appeal confirmed that where Crown witnesses have a potential interest in deflecting blame onto an accused, a trial judge must give adequate directions to assist the jury in evaluating the reliability of that evidence.
  • Errors in the jury directions on both the fault element and witness reliability, taken together, were sufficient to establish that the appellant may have lost a real chance of acquittal, precluding application of the proviso.
  • The application of the Criminal Code Act 1995 (Cth) to pre-existing Commonwealth offences, through the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth), can materially alter the fault elements of those offences and the directions that must be given to a jury.
  • Sufficient doubt about the fairness of the trial arose from the combined effect of the misdirections that a retrial, rather than entry of an acquittal or dismissal of the appeal, was the appropriate remedy.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(b)
- Criminal Code Act 1995 (Cth), Chapter 2
- Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)
- Evidence Act 1995 (Cth)
- Acts Interpretation Act 1901 (Cth)

Cases:
- He Kaw Teh v R (1985) 157 CLR 523
- Krakouer v R [1998] HCA 43; 194 CLR 202
- Kural v R (1987) 162 CLR 502
- Longman v R (1989) 168 CLR 79
- Pereira v R (1988) 63 ALJR 1
- R v Basha (1989) 39 A Crim R 337
- R v Clark [2001] NSWCCA 494; 123 A Crim R 506
- R v Stewart [2001] NSWCCA 260; 52 NSWLR 301