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Court of Criminal Appeal 14 July 2008

SITU v R

[2008] NSWCCA 161

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER ACT WAS MERELY PREPARATORY WHETHER JURY VERDICT UNREASONABLE

Citation: SITU v R [2008] NSWCCA 161
Court: New South Wales Court of Criminal Appeal
Date: 14 July 2008
Judge(s): McClellan CJ at CL; James J; Hoeben J

Background

The appellant was convicted by jury in the District Court of attempting to possess a trafficable quantity of methylamphetamine that had been imported into Australia in contravention of the Customs Act 1901. He was sentenced to seven years' imprisonment with a non-parole period of four years.

The case arose from a package consigned from Guangzhou, China, addressed to a "Ben Chan" at a Sydney boarding house. The package arrived in late September 2004 and was held by Australian Customs pending clearance. By 29 September 2004, the Customs First Notice for the package had come into the appellant's possession, despite the addressee having already left Australia.

On that day, the appellant enlisted a woman named Alice Guan to telephone Customs on his behalf and enquire about retrieving the package. He later telephoned Customs himself, requesting that the package be sent to him and stating he would obtain an invoice. The appellant was subsequently arrested. Evidence at trial also included his attempt to dispose of the First Notice when police arrived, admissions to his wife, and an attempt to flee the country.

  • Whether the trial judge erred in failing to direct a verdict of acquittal, on the basis that the appellant's acts were merely preparatory and insufficient to constitute an attempt
  • Whether the trial judge gave incorrect directions to the jury regarding what constitutes "control" of property for the purposes of possession
  • Whether the jury's verdict was unreasonable or could not be supported by the evidence, particularly in relation to the appellant's knowledge that the package contained prohibited drugs and whether he was seeking possession for himself

Decision

Whether the acts were merely preparatory. The Court of Criminal Appeal upheld the trial judge's refusal to direct an acquittal. The appellant's conduct, including possessing the First Notice, arranging for Guan to make the initial call, and then personally telephoning Customs to request delivery of the package, went beyond mere preparation. These were acts directed at actually obtaining the package.

Directions on control. The Court found no error in the trial judge's directions to the jury on the question of control as an element of possession. This ground of appeal was rejected.

Reasonableness of the verdict. The Court characterised the Crown case as strong. The jury was entitled to find, beyond reasonable doubt, that the appellant knew the package contained narcotic goods. The evidence pointing to that knowledge included his possession of the First Notice, his reluctance to collect the package in person, his attempt to dispose of the notice upon the arrival of police, his admissions to his wife, and his subsequent attempt to leave the country.

Whether the appellant sought possession for himself. The appellant argued there was a reasonable possibility he was attempting to obtain the package for another person rather than himself. The Court rejected this, noting that the Customs officer's evidence was clear that the appellant had requested the goods be sent to him. Any hesitation by the officer went only to interpreting the appellant's precise intention, not to the substance of the request. Read alongside the other evidence, it was open to the jury to conclude the appellant was seeking possession for himself.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Telephoning Customs to demand delivery of a package containing prohibited drugs, and arranging for others to do the same, can constitute acts sufficiently beyond mere preparation to support a conviction for attempt to possess.
  • A conviction for attempted possession does not require proof that the accused had physical custody of the goods; steps taken to procure delivery may suffice where the conduct goes beyond preparatory acts.
  • Circumstantial evidence, including attempts to dispose of relevant documents upon police arrival, admissions to family members, and attempted flight from the country, can collectively support a jury's finding of knowledge that imported goods contained prohibited drugs.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a Customs officer's evidence about the substance of a telephone conversation remains probative even where the officer expressed some uncertainty about the precise purpose of the caller's request.
  • No error was established in the trial judge's directions on the element of control within the concept of possession for the purposes of the drug importation offence.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(a)(iv)
- Criminal Code (Cth), s 11.1 (attempt)

Cases: No specific cases were cited in the portions of the judgment provided.