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14
Court of Criminal Appeal 29 November 2004

REGINA v KALDOR

[2004] NSWCCA 425

Also reported as (2004) 150 A Crim R 271
Drugs
CONVICTION APPEAL SUFFICIENCY OF EVIDENCE OF KNOWLEDGE CIRCUMSTANTIAL CASE WHETHER VERDICT UNREASONABLE INDICTMENT ACCUSED CHARGED AS ACCESSORY

Citation: Regina v Kaldor [2004] NSWCCA 425
Court: NSW Court of Criminal Appeal
Date: 29 November 2004
Judge(s): Dunford J, Adams J, Howie J

Background

The appellant, a 57-year-old man, was convicted in the District Court of procuring another person (referred to here as the courier) to import heroin into Australia contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). The heroin was concealed inside a guitar. The Crown's case was that the appellant had used the courier as an innocent dupe, passing the guitar through Customs at Sydney Airport without the courier's knowledge of its contents.

The indictment charged the appellant as an accessory who had "procured the commission of an offence" by the courier. However, the Crown's own case was that the courier had committed no offence at all, being entirely unaware of the drugs. This created a significant tension between the charge as framed and the prosecution case as actually run.

Two appeals came before the Court of Criminal Appeal: the appellant's appeal against conviction (arguing the evidence was insufficient to prove he knew the guitar contained heroin), and the Crown's appeal against sentence (arguing the sentence imposed at first instance was manifestly inadequate).

  • Whether the jury's verdict was unreasonable or unsupported by the evidence, given that the Crown's case on the appellant's knowledge was wholly circumstantial
  • Whether the indictment, which charged the appellant as an accessory by procuring the courier to commit an offence, was fatally defective where the Crown's case was that the courier was an innocent agent and had committed no principal offence
  • Whether the original sentence was manifestly inadequate, and if so, what the appropriate sentence should be following the repeal of s 16G of the Crimes Act (Cth)

Decision

Conviction appeal: sufficiency of evidence

The Court dismissed the conviction appeal, finding it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew the guitar contained heroin. The case against the appellant was entirely circumstantial. The Court applied the principles in M v The Queen (1994) 181 CLR 487, emphasising that a verdict should only be set aside where the appellate court concludes there is a significant possibility an innocent person was convicted. Dunford J noted that circumstantial cases are particularly within the province of juries, who bring collective life experience to bear in assessing human conduct.

Several circumstances supported the verdict. The appellant failed to make any real inquiry into the contents or origin of the package delivered to him in Vietnam. Dunford J also highlighted conduct at the airport: the appellant took his own luggage trolley to the toilet rather than leaving it with the courier, suggesting he had no genuine intention of rejoining the courier after the courier cleared Customs with the guitar. The Court found these and other circumstances were properly available to the jury.

Indictment defect: accessory charged where Crown case was principal offending through innocent agent

Adams J identified a structural problem with the indictment. As framed, the charge required the jury to find that the courier had committed the principal offence, yet the Crown's case was that the courier was entirely innocent. A conviction on the indictment as drawn was therefore logically impossible on the Crown's own theory of the case. However, the appellant had not appealed on this ground, and the Court addressed it in the context of explaining the proper legal analysis under the Criminal Code Act 1995 (Cth). The Court considered whether the reference to the courier as the principal offender was mere surplusage or went to the substance of the charge, and examined the effect of the Criminal Code provisions on accessorial liability and innocent agency.

Crown sentence appeal

The Crown's appeal against sentence succeeded. Howie J, with whom the others agreed, found the original sentence was manifestly inadequate to a very significant degree. The appropriate range after a trial was 8 to 10 years. The Court also addressed the post-repeal sentencing framework following the removal of s 16G of the Crimes Act (Cth), which had previously allowed a discount to account for remissions. Consistent with earlier Court of Criminal Appeal decisions, the Court held that the repeal of s 16G necessarily results in higher sentences, but that there is no fixed mathematical formula for converting pre-repeal sentencing ranges to post-repeal equivalents. Applying the principle of double jeopardy, the Court imposed a sentence somewhat below the range it identified as otherwise appropriate.

Orders Made

  • Appeal against conviction dismissed.
  • Crown's appeal against sentence allowed.
  • Appellant sentenced to imprisonment for 7 years, to date from 29 January 2004, with a non-parole period of 4 years.

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal reaffirmed that circumstantial cases are particularly suited to jury determination, reflecting the High Court's approach in M v The Queen: an appellate court will only intervene where there is a significant possibility an innocent person has been convicted.
  • Where an accused is charged as an accessory by procuring another to commit an offence, the indictment as framed logically requires the principal to have committed that offence. A Crown case founded instead on innocent agency may not fit within such a charge without amendment.
  • Conduct consistent with deliberate distancing, such as taking one's own luggage to the toilet at the point of Customs clearance rather than accompanying a courier, can constitute a circumstance available to a jury in assessing knowledge of concealed drugs.
  • Following the repeal of s 16G of the Crimes Act (Cth), pre-repeal sentencing ranges for Commonwealth drug offences are no longer appropriate benchmarks, and higher sentences are required. No fixed mathematical conversion between the two regimes applies.
  • The principle of double jeopardy permits a court on a Crown sentence appeal to impose a sentence below what it would otherwise regard as the correct range, reflecting the unfairness to an offender of being sentenced twice for the same conduct.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B(1)(b)
- Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2)
- Criminal Code Act 1995 (Cth), s 11.2(1)
- Crimes Act 1914 (Cth), ss 16A, 16G (repealed)

Cases
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Knight v The Queen (1992) 175 CLR 495
- Kural v The Queen (1987) 162 CLR 502
- Maher v The Queen (1987) 163 CLR 221
- Pereira v DPP (1988) 82 ALR 217
- Peacock v The King (1911) 13 CLR 619
- Azzopardi v The Queen (2001) 205 CLR 50
- R v Micallef (2002) 136 A Crim R 127
- R v Kevenaar [2004] NSWCCA 210
- R v Studenikin [2004] NSWCCA 164
- R v Dujeu [2004] NSWCCA 237
- R v Mas Rivadavia [2004] NSWCCA 284
- R v Saengsai-Or [2004] NSWCCA 108
- R v Smith and Kirton (1990) 47 A Crim R 43
- R v McKinney and Judge (NSWCCA, 6 September 1993, unreported)