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Court of Criminal Appeal 16 March 2005

Regina v SUKKAR

[2005] NSWCCA 54

Drugs
CRIMINAL LAW IMPORTATION OF ECSTASY TABLETS BEING KNOWINGLY INVOLVED IN IMPORTATION CUSTOMS AND POLICE SURVEILLANCE CONTROLLED DELIVERY EXTENT OF IMPORTATION PROCESS

Citation: Regina v Sukkar [2005] NSWCCA 54
Court: New South Wales Court of Criminal Appeal
Date: 16 March 2005
Judge(s): Wood CJ at CL; Hidden J; Smart AJ

Background

The appellant, a solicitor, was convicted after a two-month trial in the District Court on a charge of being knowingly concerned in the importation of approximately 480,000 ecstasy tablets with a wholesale value of between $7.2 million and $12 million. The tablets had been concealed in 48 columns inside a shipping container transported from Belgium and intercepted by Customs and Police in Brisbane, who then carried out a controlled delivery. The container was consigned to a company of which the appellant was a director.

After the controlled delivery, the columns were transported to Sydney premises owned by the appellant. The Crown alleged that the appellant participated in unloading and examining the columns, sorting tablets to distinguish genuine ecstasy from the inert substitutes inserted by authorities, and then actively assisted his brothers in attempting to locate what they believed was a stolen portion of the consignment.

The appellant's defence was that he had no knowledge of the importation until 1 December 2001, when his brothers approached him for advice, and that by that point the importation was already complete. He was sentenced in the District Court to 14 years imprisonment with a non-parole period of 9 years. Both the Crown and the appellant sought to appeal the sentence. The appellant also appealed his conviction on multiple grounds.

  • Whether a statement by a co-principal made during an intercepted telephone call ("Steven ate two") was admissible as a statement made in furtherance of a common purpose under the rule in Tripodi v The Queen
  • Whether evidence of references to past and future drug importations in intercepted calls and recordings was admissible as relevant to the appellant's knowledge and participation
  • Whether the trial judge erred in refusing to discharge the jury following an incident involving a person in the public gallery
  • Whether the trial judge's directions on the meaning of "knowingly concerned in the importation" were adequate
  • Whether replaying the entirety of the summing-up recording to the jury during deliberations was a proper exercise of discretion
  • Whether the summing-up was balanced
  • Whether the verdict was unreasonable or unsupported by the evidence, given the appellant's argument that the importation was complete before his involvement
  • Whether the sentence of 14 years (with a 9-year non-parole period) was appropriate, on both the Crown's and the appellant's respective appeals

Decision

The Court of Criminal Appeal dismissed the conviction appeal on all grounds. On the admissibility of the co-principal's statement, the Court held that sufficient prima facie circumstantial evidence of preconcert existed from at least the morning of 24 November 2001 to satisfy the Tripodi test, meaning the statement was properly admitted as having been made in furtherance of the common purpose.

Evidence of references to other importations was held admissible under the principles in Harriman v The Queen, because it was relevant and probative of the appellant's knowledge of the nature of the enterprise. The trial judge's refusal to discharge the jury after the public gallery incident was upheld, as appropriate directions had been given and there was no real risk of a miscarriage of justice. The directions on "knowingly concerned" were found to be adequate, and the replaying of the summing-up recording during deliberations was a proper exercise of discretion in the context of a lengthy trial.

On the central ground that the verdict was unreasonable, the Court confirmed that "importation" is a broad and flexible concept. It can extend beyond the physical act of bringing goods into the country to include recovery, unpacking, storage, and acts done in direct proximity to or incidental to that process. The Court held that the importation was still on foot when the appellant assisted his brothers in attempting to recover the drugs, giving the jury a proper evidentiary basis for their verdict.

On sentence, the majority (Wood CJ at CL and Hidden J) found no appealable error and dismissed both the Crown and appellant appeals. Smart AJ dissented on sentence, forming the view that the appellant's role was more limited than that of his brothers and that 14 years was manifestly excessive, proposing a sentence of 11 years with a 7-year non-parole period. As the majority found no error, the original sentence was upheld.

Orders Made

  • Appeal against conviction dismissed
  • Crown appeal against sentence dismissed
  • Leave granted to the appellant to appeal against sentence
  • Appellant's appeal against sentence dismissed

Key Takeaways

  • The concept of "importation" for the purposes of a charge of being knowingly concerned in the importation of narcotic goods is an extended and flexible one: it can encompass recovery, unpacking, storage, and acts done in direct proximity to or incidental to the bringing of goods into Australia, even where those acts occur after the physical arrival of the goods.
  • A co-principal's out-of-court statement is admissible against an accused under the Tripodi rule where there is sufficient prima facie circumstantial evidence of preconcert, even if that evidence is itself largely circumstantial.
  • Evidence of references to other past or future drug importations found in intercepted communications may be admissible where it is relevant and probative of an accused's knowledge of the nature of the enterprise, following Harriman v The Queen.
  • Replaying an entire summing-up recording to a jury during deliberations, following a request for a transcript, falls within the trial judge's discretion and is not automatically erroneous in the context of a lengthy and complex trial.
  • No appealable error was established in the sentence of 14 years with a 9-year non-parole period, notwithstanding a dissenting view from Smart AJ that the appellant's more limited role warranted a lesser term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 16G

Cases
- Tripodi v The Queen (1961) 104 CLR 1
- Harriman v The Queen (1989) 167 CLR 590
- R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
- R v Lam (1990) 46 A Crim R 402
- R v Leff (1996) 86 A Crim R 212
- R v Taousanis [1999] NSWSC 107
- M v The Queen (1994) 181 CLR 487
- Domican v The Queen (1992) 173 CLR 555
- Jones v The Queen (1997) 191 CLR 439
- Pemble v The Queen (1971) 124 CLR 107
- Green v The Queen (1971) 126 CLR 28
- B v The Queen (1992) 63 A Crim R 225
- Chai v The Queen (2002) 76 ALJR 628
- R v Mai (1992) 26 NSWLR 371
- R v Zorad (1990) 19 NSWLR 91
- R v Bartle [2003] NSWCCA 329
- R v Meher [2004] NSWCCA 355
- R v Prasad [2004] NSWCCA 293
- R v Chan (2002) 131 A Crim R 66
- R v Hannes (2000) 158 FLR 359