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Court of Criminal Appeal 27 June 2007

CALDERWOOD v R

[2007] NSWCCA 180

Also reported as (2007) 172 A Crim R 208
Drugs
CRIMINAL LAW CONVICTION AND SENTENCE APPEALS IMPORTATION OF MDMA CIRCUMSTANTIAL CASE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: CALDERWOOD v R [2007] NSWCCA 180
Court: Court of Criminal Appeal, New South Wales
Date: 27 June 2007
Judge(s): McClellan CJ at CL, Hulme J, Hislop J

Background

The appellant was convicted by a jury in the District Court of importing not less than a trafficable quantity of MDMA, contrary to s 233B(1)(b) of the Customs Act 1901. The offence related to a 14-kilogram package from Hong Kong intercepted at Sydney International Airport in April 2004. The package contained 1,000 MDMA tablets (258.1 grams gross; 99.1 grams pure) concealed inside DVD cases and wrapped in carbon paper.

The Crown's case was circumstantial. It relied on intercepted telephone calls, evidence from a freight forwarding agent, and an edited record of police interview to establish that the appellant had organised the consignment and made repeated efforts to obtain it after its arrival. The appellant used a false name and a fictitious business as the consignee address.

The appellant was sentenced to 6 years and 5 months imprisonment with a non-parole period of 4 years. He appealed against conviction on eight grounds (appearing in person) and sought leave to appeal against sentence (represented by senior counsel).

Legal Issues

  • Whether the Crown proved the elements of the importation offence, including the "fault" element (knowledge of narcotics) and the "material time" at which that knowledge must exist
  • Whether the evidence was sufficient to support the verdict
  • Whether the trial judge erred in admitting the full brief of evidence
  • Whether an edited record of interview should have been excluded entirely, or further edited
  • Whether the appellant's absence from pre-trial proceedings on 11 November 2004 caused a miscarriage of justice
  • Whether witnesses gave evidence before admissibility rulings were made
  • Whether the Crown's and trial judge's summings-up were distorted and prejudicial
  • Whether the sentence of 6 years and 5 months (non-parole: 4 years) was manifestly excessive

Decision

Ground 1(a) and (b): Elements of the offence and the "material time"

The trial judge correctly directed the jury that importing is a process, not a single moment. It does not conclude the instant goods land in Australia; activities incidental to bringing goods into Australia, including post-arrival efforts to obtain possession, remain part of the importation. The Court of Criminal Appeal endorsed that approach, citing R v Lam, R v Courtney-Smith (No 2), R v Leff, and R v Sukkar. The critical question for the jury was whether the appellant had knowledge of the narcotics at any point while the importation was still continuing. The trial judge's directions on this issue were held to be correct.

Ground 1(c): Insufficiency of evidence

Applying M v R (1994) 181 CLR 487, the Court assessed whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. The appellant used a false name and a fictitious business address, discussed defeating x-ray machines using carbon paper, used public phones and unregistered SIM cards, and made repeated post-arrival efforts to retrieve the parcel. He did not give evidence at trial. The Court held that the only rational inference from these circumstances was that the appellant was involved from the outset in importing prohibited drugs. This ground failed.

Ground 2: Adequacy of the Crown brief

The Court found no material in the record to support the submission that the Crown brief was inadequate. This ground was not made out.

Ground 3: The edited record of interview

The appellant faced two charges originally; the Crown proceeded only on the April 2004 importation. The record of interview was edited to remove references to an alleged May 2004 importation. The appellant argued the entire interview should have been excluded because: the editing produced a distorted or misleading impression of his state of mind; the interview was premised on a "premeditated fabricated lie" about the May importation; certain uneditied passages should have been excluded; and certain excised passages should have been only partially deleted.

The Court applied Harriman v R (1989) 167 CLR 590, which requires exclusion of an edited interview where editing destroys its coherence or character such that probative value is outweighed by prejudicial effect. Having read the full edited transcript, the Court was satisfied it remained sufficiently coherent and consistent. The occasional incoherence was attributable to the appellant's own implausible responses, not to the editing. The Court also found no evidentiary basis for the allegation of deliberate misconduct by interviewing officers, noting no voir dire was held on the point. The edited interview was highly probative and its admission was not unfair. This ground failed entirely.

Ground 4: Absence from pre-trial proceedings

The trial formally commenced on 15 November 2004, at which point the appellant was present throughout. The pre-trial discussions on 11 November 2004, during which his presence is uncertain, were administrative and procedural in nature. The appellant was represented by counsel throughout those discussions. Even if he was absent, the Court found no prejudice to the trial and no miscarriage of justice.

Ground 5: Evidence before admissibility rulings

The trial judge adopted a practice of reserving some admissibility rulings until the relevant context emerged at trial. In practice, rulings were made before the first witness was cross-examined. The Court found this course was appropriate and this ground was entirely without substance.

Grounds 6, 7, and 8: Distorted summings-up

These grounds rested on the premise that post-8 April 2004 evidence was irrelevant. The Court had already rejected that premise. Since that evidence was properly admitted, counsel and the trial judge were entitled to refer to it in closing and summing-up. The trial judge's colourful language in characterising the defence case (essentially a choice between the appellant being a knowing participant or a naive dupe) was consistent with how defence counsel had put the case to the jury. These grounds failed.

Sentence: Whether manifestly excessive

Leave to appeal was granted, but the appeal was dismissed. The sentencing judge found the appellant was a principal, not a mere courier. He had organised the freight forwarding arrangements, set up the fictitious consignee, made payments to the customs agent, and was to collect and deliver the drugs. The Court agreed this characterisation was correct. Citing Wong v The Queen (2001) 207 CLR 584 and Markarian v The Queen (2005) 79 ALJR 1048, the Court acknowledged that weight of narcotics is not the chief sentencing factor and that the offender's role and knowledge carry significant weight. Comparison with cases involving guilty pleas or expressions of remorse (Muradian, Meloh, McGregor) did not demonstrate excess. Although the sentence was above the median shown in Judicial Commission statistics, it remained within the available range. The sentence was upheld.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted, but appeal dismissed

Key Takeaways

  • An importation of narcotics under the Customs Act 1901 is a continuing process: it does not end when goods arrive in Australia, and post-arrival conduct directed at obtaining possession of the goods remains part of the importation and is admissible to establish both the act and the fault element.

  • Where a record of interview is edited to remove references to uncharged conduct, the test for exclusion is whether the editing destroys the interview's coherence or character such that its prejudicial effect outweighs its probative value. A coherent and consistent edited interview that does not distort the accused's state of mind will be admitted.

  • Allegations that police interviewers misled an accused cannot ground exclusion of a record of interview without an evidentiary foundation, typically established through a voir dire. Written submissions alone, without calling the relevant officers or seeking a voir dire, are insufficient.

  • Sufficient evidence of guilt can be established entirely through circumstantial evidence, including use of false identities, fictitious business addresses, evasive telephone conduct, and post-arrival efforts to retrieve a parcel, where no innocent explanation is provided and the accused does not give evidence.

  • In sentencing for drug importation, the Court of Criminal Appeal confirmed that the offender's role, knowledge, and culpability carry significant weight. A sentence above the statistical median does not constitute manifest excess where it remains within the range available on the facts, particularly where the offender is a principal who maintained a plea of not guilty and showed no remorse.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated